supra, in the application of the more general rule: Hill v. More, 40 Mc. 515; Stephenson v. Piscataqua F. & M. Ins. Co., 54 Id. 55; Dugan v. Thomas, 9 Atl. Rep. 354 (Me.); Wood v. Humphrey, 114 Mass. 185. There are some decisions, however, which have reached a result inconsistent with the foregoing. Thus in Liverpool etc. Ins. Co. v. Creighton, 51 Ga. 95, Leach v. Republic F. Ins. Co., 58 N. H. 245, Mentz v. Armenia F. Ins. Co., 79 Pa. St. 478, 21 Am. Rep. 80, stipulations in policies of insurance that differences as to the amount of loss should be submitted to arbitration were held not to bar the insured of his right of action; and where the effect of a contract to build a bridge was, that if the parties could not agree upon what the bridge was reasonably worth, the matter should be submitted to certain named persons, it was held that either party had the right to revoke the submission at any time before the award, or before the submission was made a rule of court: Leonard v. House, 15 Ga. 473; so a stipulation in a contract for building, that "in case any question arises under this contract in relation to the work, both as to the value of the work added or deducted, the same shall be adjusted by the aforementioned architect, and his decision shall be binding on both parties, and be final,” was held not to bar an action: Hurst v. Litchfiell, 39 N. Y. 377; and an agreement in a lease that in case of dispute between the parties as to whether certain of the repairs, which the lessor was bound to make, were sufficient, the question should be referred to an arbitrator, was held to oust the court of jurisdiction, and invalid: Vass v. Wales, 129 Mass. 38. Certain cases show a disposition to restrict the doctrine as to conditions precedent, by holding the agreement to submit may be merely collateral to an agreement in the contract to pay loss or damage, and as therefore not preventing an action. Thus it is held that where a policy of insurance contains an agreement to pay the loss, a condition that if any difference or dispute should arise touching the loss it should be referred to arbitration, was simply collateral to the main agreement to pay, and would not prevent an action on the policy before the reference: Roper v. Lendon, 1 El. & E. 825; Gibbs v. Continental Ins. Co., 13 Hun, 611; Mark v. National Fire Ins. Co., 24 Id. 565, 569. So where a lessee covenanted that he would keep such a number only of hares and rabbits as would do no injury to the trees or crops of the lessors or their tenants, and in case he kept such a number as should injure the trees or crops he would pay a fair and reasonable compensation, in case of difference to be referred to two arbitrators, or an umpire, and the lessors brought an action for breach of covenant, alleging that the lessee had not kept such a number only of hares and rabbits as would do no injury, but had kept such a number as did injury, and had neglected to pay any com pensation, it was held that the covenant to refer was a collateral and distinct covenant, and that the action was maintainable, although there had been no arbitration: Dawson v. Lord Fitzgerald, L. R. 1 Ex. Div. 257, reversing L. R. 9 Ex. 7. In this case Jessel, M. R., said: "There are two cases where such a plea as the present [that no arbitrators were appointed or award made] is successful: first, where the action can only be brought for the sum named by the arbitrator; secondly, where it is agreed that no action shall be brought till there has been an arbitration, or that arbitration shall be a condition precedent to the right of action. In all other cases where there is, first, a covenant to pay, and secondly, a covenant to refer, the covenants are distinct and collateral, and the plaintiff may sue on the first, leaving the defendant to pursue one of two courses, either to bring an action for not referring, or to apply under section 11 of the Common Law Procedure Act, 1854, to stay the action till there has been an arbitration, in which case a judge has power to prevent the case going to a jury, if the arbitration can be fairly enforced." See also Mansfield v. Doolin, I. R. 4 C. L. 17; Seward v. City of Rochester, 39 Hun, 44; Rowe v. Williams, 97 Mass. 163. It is quite common in building contracts and other contracts for construction to provide that the quantity and value of work done shall be determined by a certain person, as the architect or engineer. In such a case, the parties are bound to submit to his determination, and when made, the estimate is, in general, final: Scott v. Corporation of Liverpool, 3 De Gex & J. 334, 367; Mills v. Bayley, 2 Hurl. & C. 36, 41; Smith v. Briggs, 3 Denio, 73; Smith v. Brady, 17 N. Y. 173, 176; Herrick v. Belknap's Estate, 27 Vt. 673; Baltimore etc. R. R. v. Polly, 14 Gratt. 447, 459; Smith v. Boston etc. R. R., 36 N. H. 458, 487; Faunce v. Burke, 16 Pa. St. 469; 55 Am. Dec. 519; Hudson v. McCart ney, 33 Wis. 331; and where a person contracted to build a building to the satisfaction of a committee, it is necessary for him to aver, in an action to recover the price stipulated to be paid, that the work was done to the satisfaction of such committee: Butler v. Tucker, 24 Wend. 447; so where an agreement was made between a company and a person entering its employ, by which the employee was to deposit a certain sum of money with the company as security for the proper discharge of his duties, and the manager of the company was to be the sole judge between it and the employee whether it was entitled to retain the whole or any part of the deposit, and his certificate was to be conclusive evidence in all courts of justice that the amount retained was the true amount to be retained, it was held that the agreement was very like the stipulation in a building contract that the certificate of the architect should be conclusive, and it was therefore binding: London Tramways Co. v. Bailey, L. R. 3 Q. B. Div. 217; but in White v. Middlesex R. R., 135 Mass. 210, an almost identical agreement was held to be an agreement to submit to arbitration, and an attempt to oust the courts of jurisdiction, and was consequently void. These stipulations, providing for the decision and certificate of an architect or engineer as to the quantity or quality of work done, while they create conditions precedent, are not strictly agreements to submit to arbitration, because there is no dispute to be referred or determined: Lloyd on Building, sec. 17; Wadsworth v. Smith, L. R. 6 Q. B. 332; Northampton Gas Light Co. v. Parnell, 15 Com. B. 630; White v. Middlesex R. R., 135 Mass. 216, 220. The distinction between them and proper agreements to submit is clearly pointed out in Wadsworth v. Smith, supra, by Blackburn, J.: "Where by an agreement the right of one of the parties to have or do a particular thing is made to depend on the determination of a third person, that is not a submission to arbitration, nor is the determination an award; but where there is an agreement that any dispute about a particular thing shall be inquired of and determined by a person named, that may amount to a submission to arbitration, and the determination, though in the form of a certificate, be an award." Should the architect or engineer fraudulently neglect to make the estimate, or withhold his certificate, there can still be no recovery, unless it was by collusion with the other party: Battenbury v. Vyse, 2 Hurl. & C. 42; Clarke v. Watson, 18 Com. B., N. S., 278; Reynolds v. Caldwell, 51 Pa. St. 298; but see Hudson v. McCartney, 33 Wis. 331; Herrick v. Belknap's Estate, 27 Vt. 673; Baltimore etc. R. R. v. Polly, 14 Gratt. 447, 459; the remedy is against the architect or engineer: Reynolds . Caldwell, supra. CONDITION OF POLICY REQUIRING SUIT TO BE BROUGHT WITHIN CERTAIN TIME IS VALID: Ripley v. Etna Ins. Co., 86 Am. Dec. 362, and note; Keim v. Home M. F. & M. Ins. Co., 87 Id. 291; Mayor of New York v. Ham ilton F. Ins. Co., 100 Id. 400; Merchants' M. Ins. Co. v. Lacroix, 14 Am. Rep. 370; Chandler v. St. Paul F. & M. Ins. Co., 18 Id. 385. As to when such a condition is complied with, see Insurance Co. of North America v. McDowell, 99 Am. Dec. 497; Killips v. Putnam F. Ins. Co., 9 Am. Rep. 507; Wilkinson v. First Nat. F. Ins. Co., 28 Id. 166; Johnson v. Humboldt Ins. Co., 33 Id. 47; Hay v. Star F. Ins. Co., 33 Id. 607; Arthur v. Homestead F. Ins. Co., 34 Id. 550; Barber v. Fire & M. Ins. Co., 37 Id. 800; Steen v. Niagara F. Ins. Co., 42 Id. 297. KEYSTONE MUTUAL BENEFIT Ass'N v. Norris. [115 PENNSYLVANIA STATE, 446.] INSURABLE INTEREST IN LIFE OF ANOTHER, SUCH AS WILL TAKE CONTRACT OUT OF WAGER CLASS, MUST ARISE from the relation of the party taking the insurance to the insured, either as surety or debtor, or from the ties of blood or marriage, so that from the relation thus established there may be some expectation of benefit or advantage in the continuance of the insured life. POLICY OF INSURANCE ON LIFE OF ANOTHER, TAKEN BY ONE WHO HAD INSURABLE INTEREST IN IT, for the purpose of assigning it to a third person who had no such insurable interest, is void as a wagering policy in the hands of the assignee. CONDITION IN POLICY OF LIFE INSURANCE PROVIDING THAT NO ACTION SHALL BE BROUGHT THEREON, unless within one year from the death of the insured, is not suspended by an action brought within the year in a court which had no jurisdiction of the defendant. DEBT by Charles Norris, to the use of Jacob R. Spangler, against the Keystone Mutual Benefit Association, on a policy of insurance on the life of Mrs. Louisa Rausch. On August 29, 1878, the defendant issued a policy for one thousand dollars on the life of Mrs. Rausch, payable to her son-in-law, Charles Norris. On September 16th following, Norris assigned the policy to Jacob R. Spangler, who had no interest in the life of Mrs. Rausch. It was understood between Mrs. Rausch and Spangler, before the application was made, that the policy was to be taken in the name of Norris, and assigned by Norris to Spangler. The assignment was accepted by the defendant, and entered on its books. Spangler paid all the assessments and annual premiums. The policy contained the condition that "no suit or action at law under this contract shall lie against this association, unless the same shall be brought within one year from and after the death of the insured; and this policy is issued and accepted upon the express condition that said period of time be the limit of the right of action at law under this contract." Mrs. Rausch died October 28, 1882; but suit was not brought until March 14, 1885. The legal effect of delay in bringing suit was sought to be avoided by showing that on March 10, 1883, Spangler had brought suit in his own name on the policy in the court of common pleas of York County; but as Mrs. Rausch did not die in that county, and as the principal office of the defendant was in Lehigh County, the court could not obtain jurisdiction of the defendant, and the suit failed. The defendant requested the court to charge that, as the policy was taken out by Spangler, and all the premiums and assessments were paid by him, upon the understanding between Spangler and Mrs. Rausch, this made Spangler the real beneficiary, and as he had no insurable interest in the life of Mrs. Rausch, the verdict must be for the defendant; that, according to the admissions of Spangler and Norris, the contract of insurance was, in its inception, a wagering policy, and therefore void, and the verdict must be for the defendant; and that if Spangler effected the insurance for himself, and paid all the premiums and assessments, and the policy was taken out with the understanding that it was to be for his benefit, and to be assigned to him, he, having shown no insurable interest in the life of the insured, would not be entitled to recover, and the verdict must be for the defendant. The refusal to give these instructions constituted the defendant's fifth, sixth, and seventh assignments of error. The court also refused to charge, at the request of the defendant, that this suit, not having been brought within one year from and after the death of the insured, could not be sustained. The plaintiff had a verdict and judgment, whereupon the defendant took this writ of error. Edward Harvey, for the plaintiff in error. Robert E. Wright and J. Marshall Wright, for the defendant in error. By Court, GORDON, J. Jacob R. Spangler, the use plaintiff, had no insurable interest in the life of Mrs. Rausch; hence this policy now in suit, which was taken for his use, in the name of Charles Norris, was but a wager on Mrs. Rausch's life, and as such void and of no effect. A single question and answer, selected from his own testimony, proves the nature of the transaction beyond cavil. Question: "And it was understood between you and Mrs. Rausch, before the insurance was taken, that it was to be taken in the name of Norris, and by Norris assigned to you?" Answer: "Yes, sir." If, now, we admit that Norris had such an interest in the assured as would have warranted him in taking a policy on her life, yet that fact cannot help out the plaintiff's case, since the policy was not founded on that interest, neither was it for the benefit of Norris, but for the benefit of one who had no interest whatever in the insured life. Norris's name was used as a mere blind, and could deceive no one conversant with the facts; Spangler was the real beneficiary, and the policy would have been quite as efficient had it been issued directly to him. The doctrine here advanced is supported by all our own authorities, one of the most recent being Corson's Appeal, 113 Pa. St. 438; 57 Am. Rep. 479. As a case in point, we may also cite Warnock v. Davis, 104 U. S. 775, in which it was held, by Mr. Justice Field, that an insurable interest, such as will take the contract out of the wager class, must arise from the relation of the party taking the insurance to the insured, either as surety or debtor, or from the ties of blood or marriage, so that from the relation thus established there may be some expectation of benefit or advantage in the continuance of the assured life. Otherwise the risk is to be regarded as a pure wager, in which the interest of the policyholder is to be found rather in the cessation than the continuance of the life. On all authority, therefore, the court should have affirmed the defendant's fifth, sixth, and seventh points. Nor can we agree with the learned judge of the court below, that the running of the one-year limitation prescribed by the policy was suspended by the York County suit. Passing by the fact that that suit was brought in the name of the equitable instead of the legal plaintiff, yet as it was instituted in a court not having jurisdiction of the defendant, it was wholly without effect. As a consequence, the analogy sought to be established between the plaintiff's case and the act of the 27th of March, 1713, and the decisions under it, wholly failed, and so the court should have ruled. The judgment is reversed. INSURABLE INTEREST IN LIFE OF ANOTHER, NECESSITY OF, AND WHEN EXISTS: See note to Morrell v. Trenton Mut. L. & F. Ins. Co., 57 Am. Dec. 93; note to Continental L. Ins. Co. v. Volger, 46 Am. Rep. 189; note to Cur rier v. Continental L. Ins. Co., 52 Id. 135. A creditor has an insurable interest in the life of his debtor: Morrell v. Trenton Mut. L. & F. Ins. Co., 57 Am. Dec. 92; Rawls v. American M. L. Ins. Co., 84 Id. 280; Corson's Appeal, 56 Am. Rep. 196; 57 Id. 479; so has a husband in the life of his wife: Currier 7. Continental L. Ins. Co., 52 Id. 134; a woman in the life of a man to whom she is engaged to be married: Chisholm v. National Capital L. Ins. Co., 14 Id. 414; a father in the life of his minor child: Mitchell v. Union L. Ins. |