XXII.

CHAP. Feldt in the year 1747, in his loins, which had occafioned a partial relaxation or pally, fo that he could not retain bis urine or faces, and which was not mentioned to the insurer. Sir James died of a malignant fever within the time of the infurance. All the phyficians and furgeons, who were examined for the plaintiff, fwore, that the wound had no fort of connection with the fever; and that the want of retention was not a diforder, which shortened life, but he might, notwithstanding that, have lived to the common age of man: and the furgeons who opened him, faid, that his inteftines were all found. There was one phyfician examined for the defendant, who faid, the want of retention was paralytick; but being asked to explain, he said, it was only a local palfy, arising from the wound, but did not affect life: but on the whole he did not look upon him as a good life.

Lord Mansfield." The queftion of fraud cannot exift in this cafe. When a man makes insurance upon a life generally, without any reprefentation of the ftate of the life infured, the infurers take all the risk, unless there was fome fraud in the perfon insuring, either by his fuppreffing fome circumstances, which he knew, or by alleging what was falfe. But if the perfon infuring knew no more than the infurer, the latter takes the rifk. In this cafe there is a warranty, and wherever that is the cafe, it must at all events be proved, that the party was a good life, which makes the queftion on a warranty much larger than that on fraud. Here it is proved that there was no repre fentation at all, as to the ftate of life, nor any question asked about it: nor was it neceffary. Where an infurance is upon a reprefentation, every material circumftance thould be mentioned, fuch as age, way of life, &c. But where there is [439] a warranty, then nothing need be told; but it must in general be proved, if litigated, that the life was, in fact, a good one, and so it may be, though he have a particular infirmity. The. only queftion is, whether he was in a reasonable good state of health, and fuch a life as ought to be infured on common terms.” The jury, upon this direction, without going out of court, found a verdict for the plaintiff.

XXIL

Willis v. Poole,

Sitt, at Guild

hall, Eater Vaç,

1780.

In a fubfequent cafe, the fame rule of decifion was recom- CHA P. mended and enforced. It was an action on a policy on the life of Sir Simeon Stuart Bart. from the 1st of April 1779 to the 1ft of April 1780, and during the life of Eliza Edgley Ewer. This policy contained a warranty that Sir Simeon was about 57 years of age, and in good health about the 11th of May 1779, and that Mrs. Ewer was about 78 years of age. The defendant at the trial admitted, that Sir Simeon and Mrs. Ewer were of the refpective ages mentioned in the warranty; that he died before the 1st of April 1780, and that the was living. Two questions were intended to have been made; 1ft, As to the plaintiff's intereft: 2d, On the warranty of health. The former was dif pofed of, by the plaintiff having proved a judgment debt. As to the latter, it appeared in evidence, that, although Sir Simeon was troubled with spasms and cramps from violent fits of the gout, he was in as good health, when the policy was underwritten, as he had been for a long time before. It was also proved by the broker, who effected the policy, that the under writers were told, that Sir Simeon was subject to the gout. Dr. Heberden and other gentlemen of the faculty were examined, who proved that fpafms and convulfions were fymptoms incident to the gout.

Lord Mansfield." The imperfection of language is fuch, that we have not words for every different idea; and the real intention of parties must be found out by the fubject matter, By the prefent policy, the life is warranted, to fome of the underwriters in health, to others in good health, and yet there was no difference intended in point of fact. Such a warranty We can never mean that a man has not the feeds of a diforder. are all born with the feeds of mortality in us. A man, fubject to the gout, is a life capable of being insured, if he has no ficknefs at the time to make it an unequal contract." There was a verdict for the plaintiff,

[ 440 ]

In a former chapter we faw, that when the risk is entire, and Vide ante, c. 19. it is once begun, there fhall be no apportionment or return of

premium, though it should cease the very next day after it com

menced. The fame rule is applicable in every refpect to the

XXII.

CHA P. premium on life infurances; for the contract is entire, and if the perfon whofe life is infured, fhould put an end to it the next day after the risk commences, though the underwriter is difcharged, there would be no return of premium. This has never been decided in any judicial determination exprefly on the point, but it has frequently been declared to be the law upon the subject by the learned judges in the courfe of argument, when return of premium on marine insurances was the point under discussion. This was particularly done in the cafe of Tyrie v. Fletcher, by Lord Mansfield, when delivering the judgment of the court. "There has been an inflance put," faid his Lordship, "of a

Cowper, 669.

Douglas, 789.

policy where the measure is by time, which feems to me to "be very ftrong and appofite to the present cafe; and that is "an infurance upon a man's life for twelve months. There ་ can be no doubt but the risk there is conflituted by the mea"sure of time, and depends entirely upon it for the under

writer would demand double the premium for two years, "that he would take to infure the fame life for one year only. "In fuch policies, there is a general exception against suicide. "If the perfon puts an end to his own life the next day, or a

month after, or at any other period within the twelve months, "there never was an idea in any man's breast, that part of the "premium fhould be returned."

Afterwards in the cafe of Bermon v. Woodbridge, Lord Mansfield laid down the fame doctrine. "In an infurance upon a life, with the common exception of fuicide, and the hands "of juftice, if the party is executed, or commit fuicide, in twenty-four hours, there fhall be no return."

From thefe opinions, which have been frequently repeated in other cafes, the law upon the fubject of return of premium, aş applicable to life infurances, feems perfectly afcertained: because except in the cafe of fuicide or a publick execution, the queftion can never arise,

44T

CHAPTER THE TWENTY-THIRD.

Of Infurance against Fire.

XXIII.

Ninfurance of this fort is a contract, by which the infurer CHA P. in confideration of the premium which he receives, undertakes to indemnify the infured, againft all loffes, which he may fuftain in his house, or goods, by means of fire, within the time limited in the policy. To enter upon a detail of the various advantages, which mankind have derived from this fpecies of contract, would be a waste of time; because they are obvious to every understanding. As little does it fall within the compass of my plan to enumerate the various offices that have been inftituted for the purpose of infuring property against fire; or the rules and regulations, by which they are feverally governed. Some of them have been inftituted by royal charter; others by deed inrolled; and others give fecurity upon land for the payment of loffes. The rules, by which thefe focieties are governed, are established by their own managers, and a copy given to

every person at the time he infures; fo that, by his acqui- See 1 H. Blackst. efcence, he fubmits to their propofals, and is fully apprized of 254. those rules upon the compliance or non-compliance with which he will or will not be entitled to an indemnity.

The construction to be put upon thofe regulations has but feldom become the subject of judicial enquiry; three inftances only having occurred in our researches upon this occafion. In the proposals of the London Affurance Company, and some of the other offices, there is a clause by which it is provided, that they do not hold themselves liable for any lofs or damage by fire, happening by any invasion, foreign enemy, or any military or ufurped power what foever. It became a question, what species of infurrection fhould be deemed a military or ufurped power within the meaning of this provifo. It was held by the court of Common Pleas, against the opinion of Mr. Juftice Gould, that it could only mean to extend to houses fet on fire by means of

CHA P. an invafion from abroad, or of an internal rebellion, when ar XXIII mies are employed to fupport it.

Drinkwater v. the Corporation of the London Affurance,

* Wilfon 363.

The cafe in which this queftion arofe, was an action of covenant against the defendants upon a policy of insurance of a malting office of the plaintiff's at Norwich from fire, in which policy there was a provifo that the corporation fhould not be liable in case the same shall be burnt by any invasion by foreign enemies, or any military or ufurped power whatfoever, and that the defendants had not kept their covenants, to the plaintiff's damage. The defendants plead first the general issue, that they have not broke their covenants, and thereupon iffue is joined. 2dly, They plead that it was burnt by an ufurped power; the plaintiff replies, that it was not burnt by an ufurped power, and thereupon iffue is alfo joined. This cause was tried at Norwich affizes; a verdict was given for the plaintiff, and 4697. damages, subject to the opinion of the court, upon the following cafe, viz. That upon Saturday the 27th of November, a mob arose at Norwich upon account of the high price of provifions, and fpoiled and destroyed divers quantities of flour; thereupon the proclamation was read, and the mob difperfed for that time. Afterwards another mob arose, and burnt down the malting office in the policy mentioned. The question is, whether the plaintiff is entitled to recover in this action. This cafe was twice argued at the bar, and the court took time to deliberate; after which, as the judges differed in opinion, they delivered their opinions feriatim.

Mr. Juftice Gould was of opinion, that the malting office being burnt by the mob, who rose to reduce the price of provifions, the fame was burnt by an ufurped power, within the true intent and meaning of the provifo in the policy: to fhew that it was an ufurped power for any perfons to affemble themfelves, to alter the laws, to fet a price upon vi&uals, &c. he cited Popham 122, where it is agreed by the juftices, that to attempt fuch a thing by force is felony, if not treafon; and therefore judgment ought to be for the defendant.

Mr. Juftice Bathurst." The words " ufurped power," in the provifo, according to the true import thereof, and the meaning