Where a policy is to continue, provided that the assured pay the premium within twenty-one days of its falling due, this does not give the executors the right to pay it after his death, even though tendered within the twenty-one days (u).

On a covenant with an insurance company to keep up a policy in their office as security for money lent by them, the policy having been dropped after the first year, and the principal sums and interest having been recovered by judgment, the measure of damage is not the premiums which would have been payable to the company had the policy been kept up, but the real amount of injury, if any, which has been sustained, either through the loss of the security or the expenses incurred in effecting another insurance (x).

XIV. Insurance against Fire.

By this contract the insurer, in consideration of a certain premium received by him, either in a gross sum, or by annual payments, undertakes to indemnify the insured against any loss or damage which he may sustain in his houses or other buildings, goods, and merchandize, by fire, during a limited period of time (y). A policy of insurance against fire is a contract which is not in its nature assignable (z); it is merely a special agreement with the person insuring that the insurer will indemnify him against such loss or damage as he may sustain. The policy, however, may, and frequently is, assigned with the consent of the insurer. It is necessary that the insured should have an interest or property at the time of insuring, and at the time the fire happens; and in case of loss, the insured can only recover to the extent of his interest, insurances against fire being within the stat. 14 Geo. III. c. 48 (a).

The stat. 14 Geo. III. c. 78, s. 83 (Party Wall Act), where the house insured, situate within the limits of the act, is burnt down, gives any person interested a right to insist upon the insurance money being laid out in rebuilding. A. bought a house on a bad title and insured; B. recovered in ejectment, but before posses

(u) Simpson v. The Accidental Death Insurance Comp., 26 L. J., C. P. 289. See also Pritchard v. Merchants' and Tradesmen's Assurance Comp., 26 L. J., C. P. 169; and see post, p. 1046. As to what amounts to a payment of the premium between two insurance companies having cross accounts with each other, see Prince of Wales Assurance Comp. v. Harding, 27 L. J., Q. B. 297.

(x) The National Assurance Comp. v.

Best, 27 L. J., Exch. 19.

(y) Marsh. 681.

(z) Per Lord King, Ch., in Lynch v. Dalzell, 3 Bro. P. C. 497, but in Tomlins' edit. 4 Bro. P. C. 431.

(a) Per Lord Hardwicke, in The Saddlers' Company v. Badcock, 2 Atk. 555. See the statute in the preceding section, p. 1039, and Marks v. Hamilton, 7 Exch. 323.

sion delivered, house was burnt down; B. has a right to insist on the money being laid out in rebuilding (b).

The form of the policy used by the different companies is nearly the same. The principal difference consists in the articles of the printed proposals, which are incorporated by reference with the policy, and are to be considered as part of the contract (c). By the printed proposals of a fire insurance company it was stipulated, "that the insured should procure a certificate of the minister, &c. of the parish, importing that they knew the character of the insured, &c.;" it was held, that the procuring such certificate was a condition precedent to the right of the insured to recover; and that supposing the minister, &c. had wrongfully refused to grant such certificate, it would not vary the case, the rule being, that if a person undertake for the act of a stranger, that act must be done (d). The policy usually provides, that "no loss or damage by fire, happening by any invasion, foreign enemy, or any military or usurped power whatsoever, will be made good by the insurer." The words usurped power," in the proviso, mean an invasion from abroad, or an internal rebellion, not the power of a common mob (e). The Sun Fire-office, in the year 1727, introduced into the preceding exception the words "civil commotion," by reason of which it was held, that the office was not liable for a loss sustained by the plaintiff, whose house and distillery were set on fire by the mob during the riots in the year 1780 (f). If a person who is not a linen-draper, insures "his stock in trade, household furniture, linen, wearing apparel, and plate," by a policy against fire, this will not protect linen-drapery goods subsequently purchased on speculation; and the word linen in the policy must be confined to household linen, or linen used by way of apparel (g). A., abroad, having two warehouses, writes to this country to effect an insurance upon one of them only, without stating, as was the fact, that a house nearly adjoining to it had been on fire that evening, and that there was danger of the fire again breaking out; and sends his letter after the regular post time. The fire having broken out again on the day next but one following, and consumed A.'s warehouse; it was held, that this was a material concealment, although A.'s letter was written without any fraudulent intention (h). A

(b) Pearce v. Watts, B. R. Trin. 20 Geo. III., B. P. B. 97; Dampier MSS., L. I. L. (c) See Routledge v. Burrell, 1 H. Bl. 254.

(d) Worsley v. Wood, 6 T. R. 710. See also Oldman v. Bewicke, 2 H. Bl. 577, n. to the same effect.

(e) Drinkwater v. London Assurance Comp., 2 Wils. 363; Wilmot, 282, S. C. An assurance company having paid a loss occasioned by riots, may recover back such loss in an action against the hundred

suing in the name and with the consent of the insured. Mason v. Sainsbury, E. 22 Geo. III. B. R., Marsh. 794. Recognized in Clarke v. The Inhabitants of Blithing, 2 B. & C. 254, and in Yates v. Whyte, 4 B. N. C. 272.

(f) Langdale v. Mason, Park, 657; Marsh. 689.

(g) Watchorn v. Langford, 3 Campb.

422.

(h) Bufe v. Turner, 6 Taunt. 338; 2 Marsh. Rep. 46, S. C.

แ

policy of insurance (against fire) was effected on the stock and utensils of a sugar-house, the different stories of which were heated by a chimney running up to the top. By the negligence of the plaintiff's servants, in omitting to open the register, the heat was considerably increased, by means of which large quantities of the sugar were spoiled; but no damage was occasioned to anything but the sugar, and no greater fire existed than on ordinary occasions; it was held, that this was not a loss by fire within the policy (i). In a policy of insurance against loss by fire, from half a year to half a year, the insured agreed to pay the premium half yearly, as long as the insurers should agree to accept the same," within fifteen days after the expiration of the former half year; and it was also stipulated, that no insurance should take place until the premium was actually paid: a loss happened within fifteen days after the end of one half year, but before the premium for the next was paid; it was held, that the insurers were not liable, though the insured tendered the premium before the end of the fifteen days, but after the loss (k). By a policy under seal, referring to certain printed proposals, a fire-office insured the defendant's premises from 11th of November, 1802, to 25th of December, 1803, for a certain premium, which was to be paid yearly on each 25th of December, and the insurance was to continue so long as the insured should pay the premium at the said times, and the office should agree to accept it. By the printed proposals it was stipulated, that the insured should make all future payments annually, at the office, within fifteen days after the day limited by the policy, upon forfeiture of the benefit thereof, and that no insurance was to take place till the premiums were paid; and by a subsequent advertisement (agreed to be taken as part of the policy), the office engaged that all persons insured there, by policies for a year or more, had been and should be considered as insured for fifteen days beyond the time of the expiration of their policies; it was held, notwithstanding this latter clause (the insured having, before the expiration of the year, had notice from the office to pay an increased premium for the year ensuing, or otherwise they would not continue the insurance, and the insured having refused to pay such advanced premium), that the office was not liable for a loss which happened within fifteen days from the expiration of the year for which the insurance was made; though the insured, after the loss, and before the fifteen days expired, tendered the full

(i) Austin and another v. Drewe, Holt's N. P. C. 126, C. B., Gibbs, C. J., and afterwards confirmed by the court, 6 Taunt. 436; 4 Campb. 360, S. P.

(k) Tarleton v. Staniforth, 5 T. R. 695. Judgment affirmed in Exch. Chamb., 1 B. & P. 471; and see Simpson v. The Accidental Death Insurance Comp., 26 L.

J., C. P. 289, ante, p. 1044, where Tarleton v. Staniforth, and Salvin v. James, are commented upon. See also Pritchard v. Merchants' and Traders' M. L. Ass. Society, 27 L. J., C. P. 169; and Sheridan v. Phoenix Life Assurance Comp., 27 L. J., Q. B. 227.

premium which had been demanded: for the effect of the whole contract, &c. taken together was only to give the insured an option to continue the insurance or not, during fifteen days after the expiration of the year, by paying the premium for the year ensuing, notwithstanding any intervening loss, provided the office had not, before the end of the year, determined the option, by giving notice that they would not renew the contract (). In covenant against the defendants, who were members of the Sun Fire-office, a tender was pleaded and money paid into court, under the 19 Geo. II. c. 37, s. 7. It was objected, that the statute did not extend to insurances against loss by fire; but the court overruled the objection, on the ground that the statute was not necessarily confined to marine insurances; that it ought to be construed as extensively as the mischief, and there was as much reason to have money paid into court on a fire insurance as on any other (m).

Upon an insurance against fire there is an implied engagement that the assured will not afterwards alter the premises, so that they no longer agree with the description of them in the policy, and so that thereby the risk and liability of the insurer is increased. Thus, the converting the house insured from a house composed of two stories into a house composed of three stories, avoids the policy (n).

Insurance on a granary with a kiln for drying corn attached. By the third condition of the policy it was stated, that the trades carried on in the insured premises should be accurately described, and if a kiln or any process of fire had been used and not noticed in the policy, the policy was to be void; and by another condition, that if the risk to which the insured premises were exposed should be by any means increased, notice was to be given to the office, and allowed by indorsement on the policy. A cargo of bark having sunk near the premises of plaintiff, who was the insurer, he allowed the bark to be dried at his kiln, gratis; and in consequence of the fire at the kiln during this process, which lasted three days, the premises were burnt down. In an action against the insurance office, the jury having found that drying bark was a more dangerous trade than drying corn; it was held, first, that a user of the corn kiln for a different purpose from that intended at the time of making the policy, was not a misdescription or omission within the meaning of the third condition; secondly, that a single user of the corn kiln as a bark kiln, gratis, was not such an alteration or increase of risk as required notice to be given to the office; thirdly, that the two conditions taken together did not amount to a warranty that the plaintiff would not use the kiln for other

(1) Salvin v. James, 6 East, 571.

(m) Solomon v. Bewicke, 2 Taunt. 317.

(n) Sillern v. Thornton, 3 E. & B. 882; S. C. 23 L. J., Q. B. 368.

purposes than drying corn; fourthly, that although the fire was occasioned by the negligence of the assured himself, he, not being guilty of fraud, might recover (o). It appears upon general principles, that a policy of insurance is not rendered void by an alteration in the use to which the premises are put after the execution of the policy (p).

The profits of a business may be insured, quà profits, but not under a general description, as interest in the inn and offices" (q).

66

(0) Shaw v. Robberds and others, 1 Nev. & P. 279; 6 A. & E. 75.

(p) Per Tindal, C. J., in Pim v. Read, 6 Scott's N. R. 1004. But see Glen v. Lewis, 8 Exch. 617; S. C. 22 L. J., Exch.

228; and Stokes v. Cox, 26 L. J., Exch. 113.

(q) In re Wright and Pole, 1 A. & E. 621; 3 Nev. & M. 819.