recover any charges unless he proves his right or qualification to practise, and that he must on the trial produce his certificate to practise from the Apothecaries' Company, or prove that he was in practice on the 1st of August, 1815. The second point raised was that there was no contract, either expressed or implied, as between the society and the medical referee. The one I don't mean to deliver any opinion upon, as upon the other point I am clearly of opinion that the plaintiff must be nonsuited. The question turns upon whether there was a contract expressed or implied-what the law calls assumpsit. It is perfectly clear in this case there was no contract expressed-that there was nothing approaching a precise and specific contract. Then the question as to whether there was an implied assumpsit arises. Assurance offices have made certain rules and regulations upon which they hold out to the public that they are willing to enter into a contract. Therefore the contract is from the beginning as between the assured and the assurer. The contract is that the party shall give certain securities to them, and they assure his life upon certain conditions; and one of the conditions is that answers by a medical practitioner shall be forwarded to the society in reply to certain inquiries (as set forth in their printed letter) as to the state of health of the proposed assurer. They know not the medical practitioner to whom they are referred, and have never had any communication with him; but they take it for granted that he must know something of the assured. Now let us advert to the letter sent by the secretary of the society at the request of the assured. A proposal is made which the medical referee knows nothing of, and they agree to assure the party's life on condition that their inquiries are satisfactorily answered. It is necessary to advert to that letter to show how the case stands between the assured and the medical man selected by him as his referee, and from which letter it is clear, at all events, that the society has no communication whatever with the referee before the proposal is made. Hitherto the medical profession, which is composed of a large body of learned and scientific gentlemen, has abstained from making any claim for professional services in matters of this kind. The question has never been decided in any of the superior courts, and there is no substantial opinion making insurance companies liable. The letter which is sent by the secretary-and which makes the case more clear-is addressed to Mr. Hooper (it might have been addressed to Mr. anybody else), and runs thus :-"Sir, Mr. Jacob J. Davies, who has been proposed to this office for an assurance on his life, has given a reference to you-he has given a reference-for private and confidential answers to the following queries." Then the questions are put, but which it is unnecessary to advert to, and the letter is signed by Mr. Evans Hooper and returned to the society. How does this make a contract between the society and the medical referee? It would be very true, if there was nothing in the letter which showed that it was the act of the party who had proposed to the office for an assurance on his life, and that the opinion of a medical gentleman as to his state of health was one of the conditions upon which the society agrees to assure a party's life, that the medical referee might say, "you have no right to draw upon my skill and services." And if it was put upon that principle abstract

[*441]

edly, it might be a question whether the medical practitioner would not be entitled to remuneration. But the contract here is between the assurer and the assured. The society say, "the medical man is not of our choosing, nor are we dependent upon his skill." In my opinion it is one of the conditions made with the assured, that a medical man shall answer the questions proposed by the society. This is the basis of the contract, and the meaning of it is, "not that we shall trouble ourselves to select a referee," we leave it to your honour to choose some one who shall supply us with the information we require. I can see no contract in this between the company and the third party-the medical man. The plaintiff might have said, I shall not send answers unless I am paid. Upon the whole I am decidedly of opinion that the plaintiff in this case is not entitled to recover; and that dispenses with the first question, upon which I give no opinion."

Duplex and another v. The Economic Life Office, in the Sheriff's Court, August 24, 1852, before Mr. Russell Gurney.(a)

THE question involved in this action was the right of a medical man to a fee from the assurance office for giving his opinion on the life of a patient proposed for assurance.

One of the plaintiffs stated in evidence that he received a communication from the defendants, enclosing a long string of questions to be answered by him respecting a lady whom he attended professionally, and who had proposed her life for assurance in the office of defendants. The communication stated that they were referred by the lady to the plaintiff, and that the answers would be considered as strictly confidential. The questions were returned with answers, and a note stating that the plaintiff's fee was a guinea, which he requested should be forwarded to him. His Honour thought that no case had been made out against the defendants.

Mr. Humphreys submitted that there was no one else on whom the plaintiffs could come for the fee, and the answers were returned with a demand for it.

His Honour said the plaintiffs need not have answered the questions without the fee, and the letter enclosing the question stated that they were referred by the lady proposing her life for assurance. He felt bound to refuse the claim of the plaintiffs

Verdict for defendants.

Upon the Question, How far the Principle of the Thellusson Act is applicable to Trust for the Payment of Premiums upon Policies of Insurance.

In the case of Bassel v. Lister (9 Hare, 177,) the question was discus(d) Post Magazine, August, 1852.

sed whether a direction given by a will to pay the premiums upon a policy of assurance effected by the testator upon the life of another person out of the income of the testator's property was obnoxious to the provisions of the Thellusson Act, 39 & 40 Geo. 3, that is to say, was valid for the whole of the life assured, or only for the term of twenty-one years after *the death of the testator. The law, as it stood before the

[*442] statute in question, having put no restriction upon the accumu

lation of property so long as the vesting could be suspended, Mr. Thellusson had by his will directed that his personal property should be invested in land, and the rents and profits of the land to be purchased, and of his real estate, should be accumulated during the lives of all of his descendants who should be living at the time of death, and he then limited the accumulated property in favour of certain of his descendants who might be living at the expiration of the trust. This will being upheld by the court, it was deemed necessary by the legislature to interpose for the purpose of restriction such dispositions for the future. And it enacted, "that no person or persons should, after the passing of the Act, by any deed or deeds surrender or surrenders, will, codicil, or otherwise soever, settle or dispose of any real or personal property to and in such manner that the rents, issues, profits, or produce thereof should be wholly or partially accumulated for any longer term than the life or lives of any such grantor or grantors, settlor or settlors, or the term of twenty-one years from the death of any such grantor, settlor, devisor, or testator, or during the minority or respective minorities of any person or persons who should be living, or in ventre sa mère, at the time of the death of such grantor, devisor, or testator, or during the minority or respective minorities only of any person or persons who under the uses or trusts of the deed, surrender, will, or other assurance directing such accumulation, would for the time being, if of full age, be entitled unto the rents, issues, and profits, or the interest, dividends, or annual produce so directed to be accumulated; and in every case where any ac cumulation should be directed otherwise than as aforesaid, such direction should be null and void, and the rents, issues, profits, and produce of such property so directed to be accumulated should, so long as the same should be directed to be accumulated contrary to the provisions of this Act, go and be received by such person or persons as would have been entitled thereto if such accumulation had not been directed." And it was further provided, that nothing in the Act contained should extend to any provisions for payment of debts of any grantor, testator, or devisor, or other person or persons, or to any provision for raising portions for any child or children of any person taking any interest under any such conveyance, settlement, or decree, or to any direction touching the produce of timber or wood upon any lands or tenements, but that all such provisions and directions shall and may be made and given as if this Act had not passed. Sect. 2.

In the case in question, Sir G. Turner, V. C., thought that the history of its origin must be taken as the key to the statute, as directed against accumulation of rents and profits, quà rents and profits, and not

against dispositions having reference to any bargains or contracts entered into for other purposes than the mere purpose of accumulation.

It was said in argument that the payment of the income to the insuance company was of itself an accumulation; that the company were the recipients of the income for the purpose of accumulation; and that what was done was the same thing as if the rents were paid to an individual to accumulate in his hands, and to be paid over at the death of the life insured; but the Vice Chancellor did not consider that the payment of the premiums to the insurance office out of the income was an accumulation of that income. "The premiums," said he, "when paid

to the insurance office become part of their general funds, subject [*443]

to all their expenses; and although it is true that the funds in the hands of the companies do generally produce accumulations, it is impossible to say what accumulations arise from any particular premium. It was said that it was an accumulation as to the estate because the estate receives back a certain sum upon the death of the party whose life was insured; but what the estate receives back is not the accumulation of the income, but a sum payable by the office by contract with the testator; and is this an accumulation within the meaning of the statute? The history of the statute goes far to show that it is not; and I think the language of the enactment confirms that view. The enactment is, that no person shall settle or dispose of real or personal estate so and in such manner as that the rents and profits shall be accumulated beyond the prescribed periods; and there are words which admit of a clear, plain, common sense interpretation as referring to the accumulations of rents, profits, and income, quà rents, profits, and income. Why is the Court to put a strained construction upon them, and cut down the undoubted right which existed before the statute, beyond what the language of the statute in its ordinary interpretation imports? It is said that the Court ought to do so, because the spirit and intent of the statute was to prevent accumulations and the suspension of the beneficial enjoyment; but this argument appears to me to beg the question; for it assumes, that what the petitioner here calls an accumulation, suspending the beneficial enjoyment, was an accumulation intended to be prevented by the statute. Much reliance was placed in the argument upon the mischief which might ensue from policies of insurance being resorted to for the purpose of evading the statute if the dispositions of this will were upheld; but I entertain no apprehensions of any such mischief. I think that suitors and testators who contemplate accumulations are far too keen-sighted to incur the risks to which such a course of proceedings would be exposed." "If," he added, "the construction for which the petitioner contends can be supported, what is to become of partnership agreements for long terms of years where certain sums are to be drawn out annually, and the remaining profits are to accumulate, and be divided at the end of the terms? What is to be done with policies of insurance on the lives of debtors? And how is the case of a settlement of policies of insurance with stock transferred in trust to pay the premiums out of the dividends to be dealt with ?"

In this case the policies had been effected by the testator upon the

lives of his sons, and he had directed the settlement of them upon the families of these sons, and the payment of the premiums out of the income of his property.

If, as is probable, these policies thus effected by the testator were invalid, for the want of an insurable interest in him, it seems strange that this argument was not adduced, as it may be assumed that the court would not have carried into effect a direction to apply the proceeds of a trust estate in carrying out a void contract, although there might be a strong presumption that one of the parties to it, namely, the insurance office, was unlikely to question its validity. Even upon the hypothesis that an insurance depending upon a considerable number of lives, and a trust for the payment of the premiums, could not be impeached as obnoxious to the spirit of the Thellusson Act, it is worthy of note, [*444] that the want of an insurable interest in any number of lives

would in most cases prevent such an arrangement being carried into effect.

The doctrine of the Vice Chancellor, however, seems to go further than merely to support the disposition in question on that case, and to sanction a series of periodical payments for a term however long, when the consideration for them is a gross sum to be paid by some other party. It may, therefore, become a question for insurance offices, whether accumulations may not practically be carried into effect, by the issue of instruments in the form of policies, insuring the payment of a gross sum of money at the expiration of a long term of years, in consideration of an immediate single premium, or an annual payment in the nature of a premium payable during the whole of the term. Having regard to the expensive machinery necessary for the management of a large trust estate, it may be a question whether such an arrangement might not be carried into effect, beneficially to the insurance office, and so as to produce a large amount at the expiration of the term that could be obtained by a specific accumulation of the increase of any particular fund by trustees. The result of the accumulation directed by Mr. Thellusson has, as it is well known, proved a miserable failure; but the rock upon which the trust split was the direction to accumulate in the purchase of real estate. Had the investments been made in the funds alone, the amount, owing to the rise in the value of funded property, might have even exceeded the expectation of its authors.

REPORT FROM THE SELECT COMMITTEE ON ASSURANCE

ASSOCIATIONS.

The Select Committee appointed to take into consideration the Subject of Assurance Associations and who were empowered to report their Observations, and the Minutes of Evidence taken before them, to the House; have considered the Matters to them referred, and have agreed to the following Report: