FIRE INSURANCE. (By the late Mr. Justice Mackay.) [Registered in accordance with the Copyright Act.] CHAPTER VIII. INTERPRETATION OF THE CONTRACT. 221. Correspondence after fire, usage, acts of Can correspondence (after a fire) between the assured and assurer be invoked by the assured to show how the assurer understood a policy clause, or description? Semble, it ought in Lower Canada. 6 Toullier, No. 320. We may take the interpretation that the parties themselves have given to an act, by the way they have executed it, or acted under it. Is it the case that in England the acts of a party prior or subsequent to contract cannot be urged against him as showing how he interpreted a contract? Yes; though Lord Mansfield it was who held as in Cooke v. 73, Inst. fac. sur les conv. Transposing clauses is good, sometimes. Is it logical? So transposing words sometimes makes things clear. But is it lawful? May not the position of words and clauses be said to be written so designedly? Bell, Princ. 492, cites among other cases Hibbert v. Phyn, 4 Camp. 150, (no such case in Camp.) and 16 Douglas, Woolridge v. Boyd (it ought to be Boydell); 7 T. R. 162, (D. and E.) Middlewood v. Blasas (ought to be Blakes) as cases supporting rigorous interpretation. If deviation have once been made for however short a space or time, the return of the ship in safety to her course will not revive the policy so as to subject the underwriters for subsequent loss. The last two were marine insurances. In the former the ship was insured for a voyage from Maryland to Cadiz, but was never designed 1 Cooke v. Booth was overruled in Baynham v. Guy's Hospital, 3 Ves. for Cadiz. She was captured shortly after ALIENATION OF SUBJECT AND ASSIGNMENT 222. Effect of sale of subject insured. Where a person owns property and insures it; then, before a fire, sells it, and it is subsequently lost by fire, the insurance is of no insurance end by transfer of the subject, benefit to any one, for our Civil Code makes unless the insurer agree to the contrary. See 2483, 2576, C.C. Art. 2483 declares that transfer of the subject shall not of itself work transfer of a policy of insurance. Knowledge by the company of sale by A to B of A's house insured, -even endorsement of it on A's policy,-does not transfer A's policy to B. So I held in the case of Corse v. British American Assurance Co.1 Porter was the insured and sold to Corse, and got such endorsement on his policy. Corse was not named to get policy. within the meaning of some special acts he Sometimes a mortgagee is not alieneemay not be. So decided in Burton v. Gore Dist. Mut. F. Ins. Co., 12 Grant, U.Ca., June, 1878. But a change of the above is made by 36 Vic., c. 44, sec. 39 (Ont.), which recognises mortgagees as alienees, and renders policy void upon any alienation, even mortgage, says Bethune, Q.C., in Mechanics' Building Soc. v. Gore Dist. Ins. Co., 3 Ont. Appeal Rep., 1878. Under sec. 39 of Vic., c. 44, of Ontario, it is quite clear that the Legislature intended the policy to continue in force for both mortgagors and mortgagees; p. 153. But how does Burton, Judge of Appeal, hold that a great change has been made by 36 Vic., c. 44, sec. 39, O., which recognises mortgagees as alienees and renders void a policy upon any alienation made even by mortgage? Though mortgagees are not expressly named in the earlier part of the section, that 1 No. 2340, Superior Court, Montreal, A.D. 1871. they are intended to be included is manifest from the proviso which declares, that where the assignee is a mortgagee the directors may permit the policy to remain in force and to be transferred to him by way of additional security without requiring any premium note from the assignee. 223. Consent of Company to assignment, how expressed. conditions Policies generally contain against alienation, sometimes against alienation of the subject insured, sometimes against alienation of the policy. Conditions of the first kind are the following: "If property insured by any policy of this 'company should pass by death, assignment "or otherwise, into new hands, the interest "in the policy may be preserved to the suc*cessor, provided such succession, or assign"ment, be allowed at the office by indorse "ment on the policy; but in all cases where "such indorsement is not regularly made the "policy shall be void." [English policy.] "In case of any transfer or change of title in the property insured, or of any undivided "interest therein, the insurance shall be void "and cease." [American Etna policy.] Others say: "In case of any transfer or ter"mination of the interest of the insured in "the property insured, by sale, or otherwise, "without the consent of the company, the "policy shall thenceforth be void, and of no "effect." Conditions of the second kind are the following: "Policies of assurance subscribed by this company shall not be assignable without "the consent of this company, expressed by “endorsement thereon. In case of assign❝ment without such consent, the liability of "the company in virtue of such policy shall "thenceforth cease." [English policy.] "Policies of insurance subscribed by this company, shall not be assignable without "the consent of the company, expressed by endorsement made thereon. In case of "assignment without such consent, whether "of the whole policy, or of any interest in it, "the liability of the company, in virtue of "such policy, shall thenceforth cease." [American policy.] 224. Notice of alienation. fixed for notice. It must be before loss. Is In the first English clause supra, no time is the office bound to allow it? Perhaps not; bound to allow it, in what time should the they may choose whom they will insure.1 If notice be given? Some policies state a time, or else the assignee shall have no benefit." Where, by the act of incorporation or charter of an insurance company, it is ordered that a policy shall cease on alienation of the subject insured, but that the alienee may have the policy confirmed to him by consent of the company "within thirty days after the alienation," it has been held that the term is any officer of the insurance company.2 a fatal period, and cannot be extended by ownership. Sometimes a mere lien may be should take place in the title Where, in case of mortgage, notice was to be given to insurers, held, that actual notice must be; notice by mail, postage paid, is nil, unless received by insurers. 3 (Semble, registered letter received is good, or even not registered notice.) THE LATE MR. BARON HUDDLESTON. suddenly Dec. 5, though he had for some lit- 1 Marshall, p. 697. 2 Mann v. Herkimer Ins. Co., 4 Hill. 3 Bunyon on Fire Insurance, ed. 1867, p. 13. Hartford F. Ins. Co. v. Walsh, 54 Illinois, A.D. 1872-3. 5 Platt v. Minnesota Farmers' Ins. Ass., p. 272, vol. 1, Legal News, Montreal. £500. As an advocate, on the other hand, his career was marked by more than one conspicuous success, notably by the defence of the person charged with the Greenwich murder, and common juries would return verdicts in favour of his clients with an almost unbroken regularity. With special juries he was not so fortunate. An occasional note in the Pall Mall Gazette of Tuesday, written from information by "One Who Knows," states as "things not generally known," that his father was a noncommissioned officer in the Royal Artillery, and that the success of the late Serjeant Allen, who, after figuring as a schoolmaster and afterwards on the stage, rose to the leadership of the Oxford Circuit, first encouraged him to try his fortunes in a more ambitious career than that of usher at a school at Worcester. only too painfully evident, however, that the unequal struggle could not be long maintained, and a well-timed resignation might perhaps have secured him many more years of life. He was born in 1815 according to Dod, and in 1817 according to his obituarist in the Times, and passed to the bar from Trinity College, Dublin, after a short employment as a schoolmaster at Worcester, in 1839, being a member of Gray's Inn, of which society he afterwards became a bencher. He joined the Oxford Circuit, practising at Worcester and Stafford sessions, and became Queen's Counsel in 1857. He sat in the House of Commons for Canterbury and Norwich successively as a Conservative, but, when he had once gained a seat, rather avoided than courted distinction as a Parliamentary man. In 1872 he married Lady Diana Beauclerk. In January, 1875, he was appointed a judge of the Court of Common Pleas on the death of Cremation, which was substituted for buSir George Honeyman. In the May follow- rial by the directions of the late Baron himing a vacancy occurred in the Court of Ex-self, was carried into effect on Thursday, chequer by the death of Baron Pigott. Two Dec. 11.-Law Journal (London.) surprises for the profession ensued. Mr. Lindley, a Chancery barrister, was appointed to the common law Court of Common Pleas, and Mr. Justice Huddleston succeeded to Baron Pigott's vacancy, and became the last of the Barons." THE LATE SIR BARNES PEACOCK. Sir Barnes Peacock, the last acting paid member of the Judicial Committee of the Privy Council appointed under the statute of 1871, died at 1 o'clock on the morning of December 3, at Kensington, from failure of the heart, the final sign of the wearing out of a vigorous constitution which had resisted Bengal summers and London winters since 1810. Sir Barnes Peacock had an hereditary connection with the law. He was "Tested by the every-day work of the bar, few were his equals." This is what we wrote of the late judge on his first appointment, and we ventured to look forward to a successful career for him on the bench. Sufficiently successful, as long as his full powers lasted, no doubt his career on the bench was. His the third son of Mr. Lewis H. Peacock, of great grasp of facts, his indomitable energy, his unequalled knowledge of Nisi Prius practice made him a good all-round judge in ordinary cases. In cases extraordinary it is somewhat unfortunate for his judicial reputation that his name should be almost inseparably connected with Belt v. Lawes, in which (see 53 Law J. Rep. Q. B. 249), after his summing-up had won the way to £5,000 damages for the plaintiff, the High Court, and afterwards the Court of Appeal, with the consent of the plaintiff, but against the will of the defendant, who contended that more than nominal damages would be against the weight of evidence, reduced the damages to Lincoln's-inn-Fields, solicitor, and entered at the Inner Temple at the age of eighteen. He was not immediately called to the bar, but practised for five or six years as a certificated special pleader, a mode of preparation for the career of an advocate which was then very often adopted. Admitted to the degree of barrister-at-law in 1836 he joined the Home Circuit,when Lord Bramwell was among his contemporaries, and had chambers in Harcourt Buildings. As might have been expected from his physique and training, Mr. Peacock's speciality was in raising and arguing refined points of law rather than in imposing his will upon common juries, and it was by a nicety of criminal pleading that he made the more striking historically because at this his great mark in the profession. trial the lay lords practically renounced their right to take part in the decision of legal appeals. Messrs. Clark and Finelly, the House of Lords' reporters, quote comparatively modern instances in which a case involving the rights of individuals was discussed and voted on in the House of Lords as if an ordinary debate on a political subject or a private bill had been in question. So, in the O'Connell appeal, Lord Stradbroke wished to vote against the acquittal; but the common sense and fairness of the House, even of those most bitterly opposed to O'Connell, prevailed, and peers who have not the training of lawyers with the judicial business of the House was definitively established. The argument by which Mr. Barnes Peacock on this great occasion prevailed was briefly as follows: The indictment was of monstrous length, and contained several counts or separate charges. In 1843, Daniel O'Connell had entered upon his campaign of monster meetings for the repeal of the Union. Beginning with an assemblage of 30,000 at Trim on March 14, the numbers at these gatherings had increased to 250,000 at Tara, and on October 8 a still vaster multitude was expected to assemble at Clontarf. The Government prohibited the Clontarf meeting by proclamation, and arrested O'Connell, Gavan Duffy, and others. O'Connell was sentenced to a year's imprisonment and a fine of £2,000; the Irish Court of Queen's Bench upheld the convic-a precedent against the interference of those tion; and the accused appealed by way of writ of error to the House of Lords. Not even the recent legal proceedings in relation to Irish matters more vividly excited the public interest and attention than did this State trial. The case was argued for the several defendants by a number of learned counsel, of whom the then Mr. Barnes Pea-Some of these counts were held to be void in cock was nearly the junior, taking prece. dence only of Sir Colman O'Loghlen. Sir Thomas Wilde (afterwards the first Lord Truro) was the leader of this band of counsel, while Follett and Thesiger (afterwards Lord Chelmsford) were against them for the Crown. Mr. Peacock took an objection which, though technical in point of form, brought in question the substantial justice of the proceedings. The whole bench of English common law judges had been called in to advise the law lords. One of the most acute, Mr. Baron Parke of the Exchequer (afterwards Lord Wensleydale), confessed and avoided what he styled "the ingenious argument of Mr. Peacock." But when the law lords came to give judgment (which they did in the teeth of the advice solicited from and given by the judges), Lord Denman delivered his elaborate speech adopting the objection of Mr. Peacock, and on that and another ground moved the House to reverse the decision of the Irish Court. Lord Cottenham and Lord Campbell supported the same view, and, in spite of the opinion of the Chancellor (Lyndhurst) and Lord Brougham, the sentence pronounced upon O'Connell and his companions was quashed and the prisoners released from custody. The occasion was rendered law. Yet the verdict and judgment were general; that is, given generally upon the whole of the indictment, not separately on each separate count. The objection was that such general judgment was bad, and could not be taken to apply to the good counts only. The other objection (for which Mr. Peacock was not responsible) was founded upon a curtailment of the jury panel. Sir Joseph Arnould observes that the decision in O'Connell's case has entirely put an end to the loose practice which had so long prevailed of giving a general verdict and judgment on an indictment comprising several distinct charges. It is obvious that such a practice deprived the accused of the opportunity of meeting each charge one by one. But the practice had long prevailed, and Lord Denman said, referring to Mr. Peacock's address, which had converted him: "I felt, as my learned brothers did, great surprise when I heard the most able and ingenious argument that was addressed to the House on this point, and I confess I had never felt any doubt on the subject till that argument was submitted to my mind." After this great victory, as brilliant and useful a success as a stuff gownsman could case in which he took part so recently as last Saturday. His illness lasted only three days, and on its fatal termination being communicated yesterday to the Court in which he had sat for eighteen years, it immediately adjourned as a mark of respect to his memory. Times. On the opening of the Court of the Judicial Committee of the Privy Council (present Lord Hobhouse, Lord Macnaghten, Sir Richard Couch and Lord Shand) on December 3, Lord Hobhouse, who spoke with emotion, said: Their lordships have to inform counsel that they have received the shock of learning that Sir Barnes Peacock, who has been sitting in the case now before them and who was the oldest member of the Board, is dead; and they feel that under that shock, and with due respect to him and to the survivors of his family, they ought not to continue the public business to-day. They will go on with this case to-morrow, when they will be in a calmer state of mind. achieve, Mr. Peacock practised six years on the back benches. He took silk in 1850, and was at once made a bencher of his Inn. Two years later he was appointed to be a Legal Member of the Supreme Council of India at Calcutta. A special pleader necessarily cultivates precision and accuracy of language. The work of the legal members of the Council of India is largely concerned with codification, and the training which Sir Barnes Peacock had received in the painful exactitude of the common law was naturally of great service to him in fulfilling his new functions. Sir Whitley Stokes couples his name with those of Macaulay, Sir Henry Maine, Sir James Stephen, Lord Hobhouse, and William Macpherson among the authors of the Indian Codes, those remarkable summaries of law compiled by Englishmen for India, which, in turn, have exercised, and are still exercising, a valuable reciprocal action in simplifying English law in England. Sir Barnes Peacock was destined not only to frame laws, but to expound them on the bench. In 1859, Sir James Colvile, with whom Sir Barnes Peacock afterwards sat so many years in the chamber of the judicial committee in Downing Street, retired from the chief justiceship of the Supreme Court of Calcutta. Sir Barnes Peacock succeeded him, was made Vice-President of the Legislative Council of India, and knighted. In 1862, when the Indian judicial institutions were remodelled, he became chief justice of what was henceforth called the High Court of Judicature at Bengal. The judgments of the Court have been of the greatest assistance to students of Indian law, not only as exposi-joint curator, Dec. 20. tions of the codes, but as repositories of learning on native customs. In 1870 Sir Barnes Peacock returned to this country, and he has since 1872 been a member of the Judicial Committee of the Privy Council, which has in later years, some time subsequently to his appointment, been strengthened by the addition of the Lords of Appeal in Ordinary. He returned with a great and deserved reputation from India. His work at the Privy Council has been marked rather by caution than by showy or brilliant qualities. He gave evidence of possessing great endurance and persistence, and we reported on Monday a INSOLVENT NOTICES, ETC. Dame Fliza Petit, widow of late Pierre Agol, Re Dame Athala Piché, St. Gabriel de Brandon. Re J. A. Dupont.-F. Valentine, Three Rivers, curator, Dec. 20. Re Joseph Lecompte.-C. Desmarteau, Montreal, curator, Dec. 23. Re Mde L. Lussier.-Bilodeau & Renaud, Montreal. Re A. & A. Préfontaine, Beloeil.-Kent & Turcotte, Re Cyrille Sico te. Montreal.-Kent & Turcotte, Dividends. Re James Dawson & Co, dry goods, Montreal.First and final dividend, payable Jan. 13, A. F. Riddell, Montreal, curator. dividend, payable Jan. 10, A. F. Gervais, St. John's, Re Arthur Demers, St. John's.-First and final curator. Re Jos. Gélinas.-First dividend, payable Jan. 12, Separation as to property. Odille Dubuc vs. Toussaint Aubertin, farmer, parish of Longueuil, Dec. 24. |