action to recover the premiums paid. Held, that defendant was chargeable with the agent's knowledge of the invalidity of the policies, and that the plaintiff was entitled to recover, though the facts were never communicated to defendant.

Practice--Defense-Waiver.--Defendant, having, at the trial below, failed to elect to waive the condition making void the policy, and having defended the action on the theory that the policies were invalid, and that it was not chargeable with notice thereof, could not, on appeal, elect to treat the policies as valid.

Recovery of Premiums--Estoppel--Evidence.--The defense that plaintiff had forged the names of her sister and brother to the applications, and that she was attempting to take advantage of her own wrong in maintaining the action, could not be sustained in the absence of any evidence of intent to deceive, and of any representation on her part that they were genuine, and, in view of the agent's assurance of her competency, to sign their names.

Fulton v. Metropolitan Life Ins. Co. (N. Y. City Com. P. C.), 19 New York Supplement (Aug. 4, 1892), p. 660.

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Will-Absence of Witnesses-Declaration of Trust.-One M. insured his life and signed a document directed to the managers of the company in these words: "I give and bequeath to the amount stated on the policy given on my life by the S. Life Insurance Company. To be paid to none other unless at my request, dated later." After showing or reading the policy, which he retained, he handed it to the plaintiff, remarking, "There, that is as good as a will." In an action against the administrator, who had collected the money from the company after his death, held, that, on the account of its incompleteness, the transaction was not a gift; that as the trust intended was not irrevocable it was not a declaration of trust; and that it was of a testamentary character meant to be acted on only after the death of the donor; and that it could not take effect on account of the want of witnesses; and the action was dismissed.

Kreh v. Moses (Ont. H. C. of J., Ch. Div.), 12 Canadian Law Times (July, 1892), p. 320. (Not reported in full.)

Beneficiary-Right of Insured to Control Proceeds-Will--Statute.--A testatrix, having insured her life and made the policies payable to her two daughters, by her will required her executors, the defendants, to place the amount thereof on some thoroughly safe investment until the majority or marriage of her two daughters, when the amount and accumulated interest was to be divided equally; and she appointed her husband, the defendant, their guardian. In an action brought by the guardian to have the proceeds of the policy handed over to him by the executors: Held, (1) that the insurance moneys, being made payable to

the daughters, were by 53 V., c. 39, s. 4, severed from her estate at her death, and testamentary directions could not affect the fund beyond what is permitted by that statute and R. S. O., c. 136; (2) that during the minority of the daughters, the trustees appointed by the will, as provided for by s. 11 of R. S. O., c. 136, might, by s. 13, invest in the manner authorized by the will; but, while the insured could give directions as to the investment, there was no control over the discretion of the lawful custodian of the fund in case the income should be needed for maintenance or education, or the corpus for advancement; (3) that the guardian was the custodian of the daughters, with the incident of determining to a large extent what should be expended in their bringing up; and that the executors had charge of the preservation and utilization of the fund; and so the estate and the persons of the daughters were in different hands; (4) that s. 12 of R. S. O., c. 136, does not justify an insurance company in paying the amount of a policy to a testamentary guardian, the guardian there named being one who has given security; and that the court should not transfer the moneys from the executors to the guardian, as the latter's right to handle any part of the fund was subject to the trusts specified in the will, the execution of which was vested in the

executors.

Campbell v. Dunn (Ont. H. C. of J., Ch. Div.). 12 Canadian Law Times (July, 1892), p. 318.

Policy—Paid-up Insurance-Condition Precedent. The premium on an endowment policy was payable annually for a period of ten years, partly in cash and partly in premium notes of assured, bearing interest. The policy provided that if default should be made by assured in the payment of any premium, the defendant would pay (at the maturity of the policy) as many tenths of the sum originally insured as there should have been complete annual premiums paid at the time of such default. "But in order to secure such proportion of the policy, all premium notes must be taken up, or the interest thereon be paid annually in cash, on the date of the annual maturity of the premium until the notes are canceled by the return of the surplus, or the whole policy will be forfeited, unless one or more annual payments have been made in full by cash payment or the application of the dividend. Held, (1) That as to any notes outstanding when the assured makes default in respect to the annual premium, he must continue to pay the annual interest in cash (until the principal is extinguished by the application of dividends), as a condition to maintaining the right to receive a corresponding number of "tenths" of the sum insured; (2) but the complete payment of the cash premium or premiums for any year or years, and the payment of the notes given for such years, secures a nonforfeitable endowment of a corresponding number of tenths of the policy; (3) a dividend being applicable toward the payment of a note at the same time the interest on the note fell due, the default of the

assured to pay the interest does not discharge the defendant from the duty to apply the dividend, if such application would pay off the note, and so prevent a forfeiture of the policy; (4) the default of assured in the payment of interest amounting to four cents, is too trifling to be noticed; and (5) a non-forfeitable endowment of one tenth of the policy having been secured, that may be recovered at maturity, less whatever may remain unpaid of the outstanding notes after applying dividends to extinguish the same.

Van Norman v. Northwestern Mut. Life Ins. Co. (Minn. S. C.), 52 Northwestern Reporter (Sept. 3, 1892), p. 988.

MARINE INSURANCE.

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Sinking Boat-Abandonment-Damage.—In an action on a policy a floating bathing-boat worth $9,000, with insurance of $5,000, it appeared that the boat sprang a leak, and the assured notified the insurer, who went to the sinking boat with a wrecking-boat, the owner of which agreed to raise her for $1,800. The insurer urged the insured to enter into the contract, and that the insurer would endorse it and pay the bill. The assured refused and abandoned the boat as lost. It further appeared that the boat could have been repaired for $300. Held, that the insured could only recover $2,100, since, if she had expended this amount, the vessel might have been saved, and she could not abandon it when it could be saved by an expenditure of less than half its value. Hundhausen v. United States F. & M. Ins. Co. et al. (Tenn. S. C.), 17 Southwestern Reporter (Oct. 5, 1891), p. 152.

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Vessel in Tow-Collision-Construction of Policy.-A ship was insured "from the Clyde (in tow) to Cardiff” upon a policy which bore that "if the ship hereby insured shall come into collision with any other ship or vessel, and the insured shall in consequence thereof become liable to pay, and shall pay, to the persons interested in such other ship or vessel * any sum of money we (the underwriters) will pay the assured three-fourths of the sum so paid." A tug while towing said ship collided with another vessel and sank it. Both the tug and the tow were by the Admiralty Court of England found liable to the owners of the vessel sunk, in damages. Held, that the owners of the tow were entitled to recover under the policy of insurance although the tow had not itself been directly in collision. Lord Bramwell, dissenting.

McCowan v. Baine & Johnson (H. of L. Eng.), 28 Scottish Law Reporter (Sept. 23, 1891), p. 943.

Application-Breach of Warranty-Burden of Proof.-Where payment of a risk is resisted by insurers on the ground of misrepresentation, the onus is on them to prove very clearly that such misrepresentation has been made.

Policy-Declaration of Risk.— An open policy was granted on goods shipped from Melbourne to London, per one set of specified steamers to Sydney, and thence to London per another set, covering risk while

in a specified factory at Sydney, "declaration to be made within fortyeight hours after departure of steamer from Sydney." Held, that, according to the true construction of this contract, two declarations must be made by the insured, one as incident to every contract of an open policy, for the purpose of identifying the shipments at Melbourne to which the policy was to attach and necessary by law to make the policy operative; the other, under the express terms of the above contract, giving particulars relating to such goods as had been already brought within the policy, by a previous declaration apt for that purpose, and had since been actually shipped to London.

Contract to be in Writing-Semble.-Though there is no positive law in New South Wales requiring contracts of marine insurance to be in writing, yet the general authority given to an agent of an insurance company must be to make contracts in the ordinary way, and that is by writing.

Davies et al. v. National Fire and Marine Ins. Co. of New Zealand (H. of L., Privy Council App., England), Appeal Cases, Law Reports (Nov. 2, 1891), p. 485.

Loss of Vessel-Expense of Raising-Receipt-Evidence.-A fire broke out in the hold of a vessel, and to save the cargo she was scuttled and sunk. The expense of raising her was $15,000, and, on examination, the damage to the vessel and furnishings was found to be about the same. An agreement was entered into between the owner and the insurance agents for adjusting the loss, which agreement provided that the adjustment related only to the damage to the property covered, and did not apply to "any question that may arise for saving boat and cargo." Proofs of loss made out on this basis were forwarded to the companies, accompanied by further statement that the insured would make further claim for expense of raising the vessel. After a conference between the owner and a committee of the insurance companies, a paper was signed reciting that the loss and damage by the fire which occurred to the vessel was adjusted at $15,364.78 (the exact sum covered by the proofs already furnished), "payable without discount, upon presentation of the policies to the several companies by the assured," etc. In accordance therewith the sum was paid nearly two months before actually due by the terms of the policies, and receipts in full were given to the companies, respectively. Held, that parol evidence was permissible to show that this settlement referred only to the damage to the vessel, and that the expense of raising her was left open for future adjustment.

Same-Same-Same-Same.-Although the payment of one-half the liability before it was due was a sufficient consideration for releasing the claim to the remainder, if so intended by the parties, yet parol evidence was permissible to show that it was not so intended, but was a mere waiver by the insurance companies.