The principle contended for would be equivalent to a *rule that

[*58] the purchaser should pay the costs of the vendor's solicitor,

whether a good title were made or not.

It would seem that the medical profession have the cure of the evil, if such it be, in their own hands. Their claim is against their patients. If, therefore, they think it right to combine, they should do so by mutually agreeing, that unless the fee is paid by the patient, they will not reply to the office; the obligation, joined to the absence of any remedy against the company, would then be an excuse to the patient for making the claim upon him, and the fee would be paid. Under the present practice, it is likely that the fees will not be paid to those gentlemen who claim them from the insurers, except in exceptional cases, where there is actually a call upon their skill; while a large portion of the profession, having ascertained that there is no claim at law against the office, will continue to furnish their certificates without any charge to either party. Of course it is optional to the medical man to reply to the letter of application that, without payment, he will give no answer; and thereupon the company, if continuing to request the information, would be bound to pay for it.

[ *59]

CHAPTER IV.

THE POLICY AND ITS CONDITIONS.

1. THE premises of the contract being complete, the insurers decide to accept or decline the proposal, and the decision is notified to the assured. In some companies this acceptance is unconditional, so that the premium be paid within the month; the letter of acceptance running to the effect that the proposal has been accepted, "and that a receipt is ready at the office for the premium, upon the payment of which the assurance will commence; but that, if the same be not paid within thirty days, a reappearance and fresh certificates will be required." In other companies the acceptance is qualified by the condition, not only that the insurance shall not commence until the payment of the premium, but that no material fact shall have occurred prior thereto of a nature which ought to have been communicated to the insurers if it had happened before the date of the proposal; or, the policy is executed by the directors or trustees, with a condition to that effect endorsed upon it, and is then lodged in the hands of the officers or agents of the company, to be handed over to the assured upon the payment of the premium. This clause has been introduced to meet the case, which has occurred in practice, of a person making a proposal for an insurance which he did not intend to complete, and then taking advantage of any sudden occurrence likely to turn the chances in his favour; as, for instance, when he makes the same proposal to several offices, intending to insure with that which may offer the most

favourable terms, and on the occurrence of an accident or the appearance of a mortal disease affecting the person whose life is to be assured, completing all the insurances, although the last mentioned-person was on the point of death at the time. Such a stipulation is [*60] fectly fair, and without it the contract is unequal, for the company has no power to compel the completion of the insurance by the payment of the premium.

per

2. The policy or written evidence of the contract is signed by the directors or trustees, according to the provisions of the deed of settlement, sometimes being under seal and sometimes under hand only. When issued by a company completely registered under the Joint-Stock Companies' Registration Act, it is invariably sealed with the seal of the company, and authenticated by the signatures of at least two of the directors, in pursuance of the provisions of that act. (a) Such policies, when under seal, are deeds poll, charging the company as specialties. When under hand only, they operate as agreements of the co-partnership, signed by the directors on behalf of themselves and their co-partners. When under seal, they are occasionally somewhat informal as to their execution as compared with other deeds poll; but this will not make them the less deeds if otherwise containing the essentials of a deed, namely, signing, sealing, and delivering. With regard to the sealing, Lord St. Leonard's, in his book on Powers, observes, "that it is not necessary that an impression should be made with wax or with a wafer. If the seal or other instrument used be impressed by the party on the plain parchment or paper with an intent to seal it, it is clearly sufficient; and therefore, when the instrument is a deed, and on proper stamps, and it is stated in the attestation to have been sealed and delivered in the presence of witnesses, it will, in the absence of evidence to the contrary, be presumed to have been sealed, although no impression appear on the parchment or paper."(b) Again, as to delivery, although essential to a *deed, yet it re[ *61] quires no special form, and may be without any words, and the delivery of the document to the officers of the society, to be handed over, as the custom is, upon the payment of the premium, would, in the absence of any express declaration of delivery, be sufficient for the purpose. (c) In the case of a corporation, affixing the common seal is itself tantamount to delivery, except when accompanied by a direction to a clerk to retain. the deed until a particular event has occurred, in which case the delivery is suspended until that event takes place. (d) The attestation clause is, moreover, immaterial; for witnesses are not essential to a deed.(e)

3. The sum assured, as we shall hereafter see, is a chose in action, and will devolve, as every other similar interest, upon the personal representatives of the assured, or upon his assigns, by act of law, and cannot be assigned to any other party, although the beneficial interest may be transferred in equity. This arises from the rules of the common law, by which no personal contract is assignable at the will of the contractee,

(a) % 46.

(b) Sug. Powers, vol. i. p. 282.

(e) See 4 Cruise Dig. 34, 35; Com. Dig. Fait (A 3), (A 4.) (d) Good v. Ash, 3 Keb. 307; Derby Canal Company v. Wilmot, 9 East, 360; Grant on Corporations, 63. (e) Com. Dig. Fait (B 4 a).

with the exception of bills of exchange, which became so at an early period by the custom of merchants, and promissory notes, which became so subsequently by statute.(f) There is no suchexception in favour of policies of insurance, which cannot, therefore, be made negotiable or payable to order or to bearer, unless they fulfil the conditions of bills of exchange and promissory notes. Now a bill or note may be [*62] made payable at a future time, although uncertain, provided that

it must happen some time or other: thus, a note payable on the death of A. B., or of the maker, is good ; (g) but it cannot be made payable out of a particular fund, (h) or on a contingency, and the happening of the contingency will not cure the defect; or be subject to a condition, although the condition be made by indorsement before the completion of the note.(i) It must be for a sum certain, and cannot be susceptible of contingent or indefinite additions. It must in fact be a contract for the payment of the particular sum simpliciter. (4) Hence policies of insurance are never attempted to be made in this form, which would not admit of the usual conditions, or even of the payment of the consideration by an annual premium, or of a stipulation entitling the assured to participate in the profits of the concern.

4. The wording of the policies themselves is as various as that of the declarations, but they also for the most part follow one general form. They commence by recitals of the desire of the assured to become a member of the society or to effect the insurance, of the declaration more or less at length, and of the payment of the first year's premium. The witnessing, or operative part, then consists of an agreement, "that if the assured shall die within the term of one year, ending on the

day of

day of

inclusive, or if he or his assigns shall, in the event of his living beyond the said term of one year, pay at the office of the company, during his life, the like premium, on or before the in every subsequent year, the funds and property of the company shall be liable, according to the provisions of its deed of settlement, *to pay and [ *63 ] satisfy, within three calendar months after satisfactory proof shall have been received at the office of the company of his death, unto his executors, administrators, or assigns, the principal sum assured, and such further sums as may be appropriated as a bonus upon the policy." Or the directors or trustees executing the policy covenant, that they or their assigns will make such payments out of the stock or fund of the company. And in one office() the sum assured is made payable at the expiration of three months, if the policy is in the hands of the personal representa

(f) 3 & 4 Anne, c. 9, enacting "That all notes in writing after the date of the act, whereby any person or persons, body politic or corporate, should promise to pay to any other person or persons, his, her, or their order, or unto bearer, any sum of money mentioned in such note, should be taken and construed to be due and payable to any person or persons to whom the same is made payable, and that notes payable to order should be assignable by indorsement in like manner as inland bills were made payable."

(g) Cooke v. Colehan, 2 Stra. 1217; Roffey v. Greenwell, 2 Per. & Dav. 365, 10 Ad. & Ell. 222. (h) Yeates v. Groves, 1 Ves. J. 280.

(i) Leeds v. Lancashire, 2 Camp. 205. (k) Smith v. Nightingale, 2 Stark. 375; Bolton v. Dugdale, 4 B. & Ad. 619; Byles on Bills of Exchange, 72. 74. (2) The Equitable.

tives of the deceased, or, if otherwise, within six calendar months. Then follow the conditions of the policy, making it void in certain specified events, and which are either there set forth or referred to, as indorsed upon it. And, lastly, any special provisoes rendered necessary for explaining the particular contract, or called for by the constitution of the company, such as, in a proprietary company, a stipulation limiting the liability of the insurers to the amount of their shares, including such part of them as may have been paid up. When, moreover, the powers of the company under the deed of settlement are defective, and the intention exists of an application to the legislature to enlarge them, or it is desirable to obtain the assent of the individual insurers to some beneficial change in the constitution of the company, it is not unusual to insert an express stipulation to that effect in the policy.(m)

When the policy is on the life of a nominee, it runs in a similar form, the sum assured being made payable, upon the lapse of the life named, to the assured or his representatives, the principal distinction being, that in some offices the conditions are framed more favourably to the assured than "in own life policies." This distinction will be more particularly adverted to in considering the nature of the condi- [*64]

tions.

Where the bonus is to be applied in reduction of the annual premium, the policy is made renewable upon the payment of the annual premium, or such reduced premium as may from time to time, according to the regulations of the company, be determined to be payable in respect of the assurance by the directors thereof, which determination is, in all cases, to be taken as conclusive by the said assured or his assigns.(n)

5. A difference formerly existed between policies expressed to be granted for a certain period "from the day of the date" and "from the date," the one being considered to mean exclusive, and the other inclusive of the day, (o) and which gave rise to the words "both inclusive;" but the distinction, it is said, is now exploded, (p) and that as the expressions may mean the same thing, and they are of doubtful import, they must be interpreted according to the intention of the policy, to be gleaned from the whole instrument; and as the words are those of the insurers, they ought, according to the general rule of law, to be taken most strongly against them.(2)

6. In examining the conditions adopted by the different offices, it is necessary to premise that where any particular form is referred to, as having been adopted by any office, it is so merely to show that it is a form that has been, and therefore may be again in use; but it is not to be assumed that either all the policies issued by the company cited have been so in the form in question, or that it necessarily continues to use it, for it will be found that it is by no means uncommon for insurance companies from time to time to alter or amend their conditions.

(m) See Policies of the Rock Office, 1853.

(n) Royal Exchange Policy, 1853.

(o) Sir R. Howard's case, 2 Salkeld, 625; 1 Ld. Raymond, 480. (p) Pugh v. The Duke of Leeds, Cowp. 714.

(2) 2 Parke, 930; Dowdeswell, 55.

*Of these, the first is usually declaratory of the first princi[*65] ples of assurance law, that the policy depends upon the truth of the declaration, the disclosure of all material facts, and the correctness of the representations as to any such facts. Or it sets out these principles with the modification that the policy shall be void if the declaration shall be untrue, or if the referees are proved to have knowingly given false testimonials.

7. A second condition relates to the payment of the premium, which must be done on or before the day at which it falls due, or within thirty days, or in some cases fifteen days after. The proper form of such a condition is, that the policy shall not become void before the expiration of thirty days from the day on which the premium shall become due, notwithstanding the death or other event, upon which the sum assured shall become due, shall have happened within the thirty days, provided that the premium due be paid before the expiration of that day. In some offices no such condition is inserted, and the right to renew within the further term depends upon a provision of the deed of settlement, or the custom of the company, of which the letter of notice of the renewal premium falling due, and which always contains a statement of this nature, would probably be sufficient evidence. It is, however, of importance that the condition should be strictly complied with; for it seems that, at law at least, it will be strictly construed.

Thus where a party, as a member of a life insurance society for the benefit of widows and female relations, effected a policy for an annuity payable to his widow in consideration of a quarterly premium to be paid during his life; and the society covenanted with him and his executors, that if he should pay to their clerk the quarterly premiums on the quarter-days during his life, and if he should also pay his proportion of contributions which the members of the society should, during his life, be called upon to make, in order to supply any deficiencies in their funds; then, upon proof of his death, the annuity should become *pay[ *66] able. By the rules of the society, if any member neglected to pay up the quarterly premiums for fifteen days after they were due, the policy was declared to be void, unless the member (continuing in as good health as when the policy expired) paid up the arrears within six months, and five shillings per month extra. It was held, that the member insuring having died, leaving a quarterly payment due at his death, the policy expired; and that a tender of the sum due by his executors, though made within fifteen days after it became due, did not satisfy the requisitions of the policy, and the rules of the society, which required such payment to be made in his lifetime, continuing in as good health as when the policy expired.(r) To keep the policy in force, moreover, the renewal premium must be actually paid: it is not sufficient that there was no intention to discontinue the policy, and that the office is not in fact damnified by the delay. (s) The common equitable relief in respect of money payments does not apply, for the company has no power of compelling

(r) Want v. Blunt, 12 East, 183. See Tartleton v. Stainforth, 5 T. R. 695, 1 Bos. & Pull. 471. (s) Acey v. Fernie, 7 M. & W. 151.