FIRE INSURANCE. (By the late Mr. Justice Mackay.) [Registered in accordance with the Copyright Act.] [Continued from p. 23.]

CHAPTER X.

NOTICE OF Loss.

§ 236. Condition requiring notice of loss to be given.

Many English policies have a condition to the following effect:-" All persons assured by this Company, sustaining any loss or damage by fire, are forthwith to give notice to the secretary, or to the agent in the country from whom the policy was obtained, and as soon as possible after, to. deliver in as particular an account of their loss or damage, signed with their own hands, as the nature of the case will admit of; and where there have been more insurances than one, the whole must be specially mentioned. In this account, the property and articles must be specified in detail, showing the value immediately before, and the value after the fire; and the assured shall make proof of the same by his oath or affirmation, and by his books of accounts or other proper vouchers, as shall be reasonably required." (Scottish Provincial.)

Others read as follows:-"Persons insured by this Association, sustaining any loss or damage by fire, shall forthwith give notice to the agent through whom insured, or to the nearest agent of the Association, and shall, within one calendar month after such fire shall have happened, deliver in as accurate and particular an account of their loss or damage respectively as the nature and circumstances of their respective cases will admit, and shall (if required), by oath or affirmation verify the same and prove the correctness of every such account, and the items therein contained, and shall produce such other evidence as the directors may reasonably require; and until such oath or affirmation be made, and account and evidence are produced, verified and proved, the amount of such loss, or any part thereof, shall not be payable or recoverable. And if there appear any fraud or false declaration, or that the fire shall have happened by the procurement, or wilful act, means or conni

vance of the insured or claimants, he, she' or they shall be excluded from all benefit under his, her, or their Policy or Policies.".

The two policies just referred to and the policies of "The Royal" require notice but do not say notice in writing. Verbal notice would do.

Where notice in writing of loss is required, will the fact that the insured verbally notified the local agent, and asked him to advise the head office, which the agent does in writing, but not stating that he does so at the request of the insured, suffice,-particulars being furnished by the insured afterwards? Lafarge v. Liverpool, London & Globe, A.D. 1873. 17 L.C.J. 237

Notice to be given of fire in a certain time. This is de rigueur in France, but force majeure will excuse; (e.g. siege of Paris.)

Notice in writing of loss, by the conditions of the Liverpool, London & Globe company, is required to be given forthwith to the agent of the company, and within fifteen days afterwards particulars of loss verified by oath, &c.; nothing is said of peine de nullité, but rather the contrary, as the policy goes on to read as merely suspensive of any exigibility of money till so and so. Notice of loss was to be given by the assured, but the mode of service was not fixed by the policy. Addressing properly and mailing a letter was held sufficient by the Pennsylvania Supreme Court. Susquehannah Mut. Ins. Co. v. Panhannock Toy Co., 24 Alb. L. J. p. 363 of 1881. Wood on Insurance 702, is plausible for the above, but I say the assured must prove delivery and receipt by the insurance company; trouble is beside the question. If it be said, let it be prima facie sufficient, you will put the onus of a negative to be proved on the insurance company. Insurers will often support their cases by perjury, and juries be led astray at the trial, presuming as they do against companies, defendants.

237. Oath of agent held to be sufficient. The oath of the insured is required to particulars of loss. The oath of the agent, however, in the principal's absence, has been held sufficient, where the agent possessed all the knowledge.1

1 Sims v. State Ins. Co., of Hannibal, Missouri, 4 Am. Rep. (A.D. 1872).

Notice and oath, by the policy, in the case referred to, were to be given within three days. The insured resided in St. Louis; the agent obtained the policy, signed the application, executed the premium, and the company refused to pay before the suit on other grounds.'

The American clause is more rigorous, All persons assured by this Company, and sustaining loss or damage by fire, are to give i mmediate notice thereof, within fourteen days, to the secretary or manager of the company, or to the agent of the company, should there be one acting for it in the neighborhood of the place when such fire took place, and as soon after as possible, to deliver in a particular account of such loss or damage, signed with their own hands, and verified by their oath or affirmation.

"They shall also declare on oath or affirmation, whether any and what other assurance has been made on the same property; what was the whole value of the subject assured, and what their interests therein; in what general manner (as to trade, manufactory, merchandise or otherwise), the building assured or containing the subject assured and the several parts thereof, were occupied at the time of the loss, and who were the occupants of such building; and when and how the fire originated, so far as they know or

believe. They shall also produce a certificate, under the hand and seal of a magistrate or notary public, most contiguous to the place of the fire, and not concerned in the loss, stating that he has examined the circumstances at tending the fire, loss or damage alleged, and that he is acquainted with the character and circumstances of the claimant, and verily believes that he, she or they, have, by misfor

tune, and without fraud or evil practice, sustained loss and damage on the subject assured, to the amount which the magistrate shall certify; and until such proofs, declarations and certificates are produced, the loss shall not be payable. Also, if there appear any fraud or false swearing, the assured shall forfeit all claims under this policy."

"When merchandise or other personal property is partially damaged, the assured

1 The Court held that if it had doubt, it would hold the objection waived, not being made till after suit.

shall forthwith cause it to be put in as good order as the nature of the case will admit of, aided by a surveyor of the company, should the Board of Directors deem it so necessary; and shall procure a list or inventory of the whole to be made naming the quantity and cost of each article. The damage shall then be ascertained by the examination and appraisal of each article, by disinterested appraisers mutually agreed upon; one half the expenses to be paid by the assurers."

Condition requiring certificate of magistrate or notary most contiguous,etc.; in Lampkin v. W. Ins. Co., 13 U. Ca., the Queen's Bench held it to work.

In Shannon v. Hastings M. F. In. Co., it was held unreasonable under 36 Vic., c. 44, sec. 33 (0.) The Supreme Court of Canada held so in 1878 in Shannon's case on the appeal of Hastings M. F. In. Co., which appeal was dismissed.

Semble, in Quebec such condition is not unreasonable, but insurance companies are omitting that condition.

238. Delivery of particular account a condition precedent.

The delivery of the particular accounts is the insured, and to be averred in the declaraa condition precedent to be performed by tion to show title to recover.

Under the American clause the insured

may lose his claim through the refusal, even wilful or groundless, of the nearest notary or magistrate to certify. This is similar to the old condition in England, requiring the certificate of the minister and churchwardens of the parish, which condition is rarely, if ever, seen now. The working of it may be observed by reference to the hackneyed cases of Wood v. Worsely, 2 H. Bl.; Routledge v. Burrell, 1 H. Bl.; Worsely v. Wood, 6 D. & E.; Oldman et al. v. Bewicke, 2 H. Bl.1

239. Slight informality does not invalidate notice.

In Wiggins v. The Queen Insurance Co.,' the jury found that the plaintiff made his claim with particulars, "but not in due form." The Superior Court thereon dismissed the action, but the judgment was reversed in appeal, and the plaintiff was allowed to recover.

1 As to Wood v. Worsely, three of the judges were against the ruling of the Court, and Bell seems inclined the same way.

2 In the Queen's Bench, Montreal, A.D. 1868.

statement in the first instance, but only if required; but under the U. S. clause the particular account must be under oath or affirm ation when delivered in.

Particulars after loss were furnished late, but the claim was considered, and rejected, not for that, but other cause. Waiver was held, as to notice within fixed time. Dohn V. Farmers' Joint Stock Ins. Co.1

2

In 1832, in the New York Supreme Court, occurred the case of Cornell v. Le Roy & Rapelye. In an action on a policy, it was held that notice of loss by an assignee of the policy (an assignment of the policy having been made before loss with the assent of the assurer), is compliance with the condition that all persons insured shall forthwith give notice, etc. The report, however, shows that the policy, which was of a British company, the Alliance (of London), had not such a condition in it as condition 8 of the policy of the defendants.

Under the U.S. clause the certificate of the magistrate or notary must be full on all the points.

A certificate that would state that the magistrate or notary is acquainted with the character and circumstances of the claimant, and verily believes, etc., but should omit to state that "he has examined the circumstances attending the fire, loss or damage alleged," would be bad.

So, if he certified to loss, and to examination, but not as to character of claimant.

As to the delivery in of the particular account or statement of loss under the above conditions, after notice given of the fire, semble, under the first and third, it need not be even in a month, but under the second must it be within one calendar month after the fire. 3

3

Semble, under the first and third, the particular account must be signed with assured's own hand; but under the second, it need not be, but may be signed by an agent.

Suppose first, an insurance on buildings by A. Second, assignment of policy by A to B, and the insurance company to endorse that they hereby consent that the interest of A in the within policy be transferred to B, subject, nevertheless, to all the conditions and stipulations therein. Surely after a fire B cannot pretend an absolute claim for the money; and surely A's loss would have to be proved. The following condition upon that insurance company's policy would have to be observed::

"On the happening of any loss or damage by fire to any of the property included in the within policy, the insured shall immediately give notice thereof in writing to the company, and within 14 days after the happening of such loss or damage, shall deliver to the company as particular an account as is practicable of the property lost or damaged, and of the value thereof immediately before the happening of the said fire, and shall also in support of such statement make proof thereof by production of his books, accounts, invoices, vouchers and such other evidence and explanations as the company shall require, together with, if required, a declaration under oath or affirmation of the truth of such account or statement. The delivery of such notice, account or statement as is hereinbefore mentioned within the time above expressed, and the proof thereof in manner aforesaid, shall be a condition precedent to the insured recovering under this policy any sum what

ever."

THE LATE MR. GLASSE, Q.C.

The announcement of the death of Mr. Glasse, Q. C., must have caused surprise to many people-not that he was dead, but that he had only just died. When in practice he

MACDOUGALL V. THE LAW SOCIETY OF
UPPER CANADA.

Solicitor-Practising without certificate—Nominal member of firm-Professional advertise

ment.

The firm of M. M. & B., barristers and solicitors, published an advertisement in newspapers which stated that the firm consisted of three partners, W. M., F. M. and N. B., and the three names appeared, also, on the professional cards and letter headings used by the firm. W. M. not having taken out a certificate of the Law Society entitling him to practise as a solicitor, proceedings were instituted to have him suspended from practice for three months unless the fees to the society and a penalty of $40 were paid. In these proceedings it was shown by the evidence of F. M., taken under an order for examination, that W. M. was not, in fact, a partner in the said firm; that an agreement of partnership had been entered into between F. M. and B., who shared all the profits and paid all the expenses of the firm; that no writs were issued in the name of the firm, but were issued in the name of B., and all proceedings in the courts were carried on in B.'s name, and that W. M. was not, at first, aware that his name would appear as an ostensible partner, though he made no objection to it afterwards. As against this, the only act of practising as a solicitor by W. M. shown by the society, was that the name of the firm was indorsed on certain papers filed in the Ontario courts in suits with which the firm was concerned.

Held, reversing the judgment of the Court of Appeal (15 Ont. App. R. 150), and of the Divisional Court (13 O.R. 204), that W. M. did not practise as a solicitor in the courts of the Province within the meaning of R. S. O.

OTTAWA, Nov. 10, 1890.

GODSON V. THE CORPORATION OF THE CITY OF TORONTO, AND MCDOUGALL.

Prohibition-Restraining inquiry ordered by City Council-R. S. O. (1887), c. 184, s. 477-Functions of county court judge.

The Council of the city of Toronto, under the provisions of R. S. O. (1887), c. 184, s. 477, passed a resolution directing a county court judge to inquire into dealings between the city and persons who were or had been contractors for civic works with a view of ascertaining in what respect, if any, the system of the business of that city in that respect was defective, and if the city had been defrauded out of public monies in connection with such contracts. G., who had been a contractor with the city, and whose name was mentioned in the resolution, attended before the

judge and claimed that the inquiry as to his contracts should proceed only on specific charges of malfeasance or misconduct, and the judge refusing to order such charges to be formulated, he applied for a writ of prohibi

tion.

Held, affirming the judgment of the court below, Gwynne, J., dissenting, that the county court judge was not acting judicially in holding this inquiry; that he was in no sense a court, and had no power to pronounce judgment imposing any legal duty or obligation on any person; and he was not, therefore, subject to control by writ of prohibition from a Superior Court.

Held, per Gwynne, J., that the writ of prohibition would lie, and in the circumstances shown it ought to issue.

Appeal dismissed with costs. McCarthy, Q.C., and T. P. Galt for appellant. Aylesworth for respondent,