1795.

WOOD

against

WORSLEY.

"or damage as the nature of the case would admit, and "make proof of the same by their oath or affirmation, and by "their books of accounts, or other proper vouchers, as should "reasonably be required, and should produce a certificate "under the hands of the minister and churchwardens, and [575] "of some respectable householders of the parish, not con“cerned in such loss, importing that they were acquainted "with the character and circumstances of the person or persons insured, and knew or verily believed that he, she or "they really and by misfortune without any kind of fraud "or evil practice, had sustained by such fire the loss and "damage therein mentioned, and in case any difference should

arise between the insured and the Company, touching any "loss or damages, such difference should be submitted to the "judgment and determination of arbitrators indifferently chosen, " &c." It then went on to aver the interest of the bankrupt in the things insured, that the house and goods were consumed by fire, together with the books of accounts of the bankrupt, that they gave notice forthwith to the Assurance Company at their office, and also as particular an account of the loss as the nature of the case did admit, and were also ready and willing to make, and did tender and offer to make proof of the said loss and damage by their oath, and to produce such vouchers as could be reasonably required in that behalf, and that he did as soon as possible after their loss procure and deliver to the said Company at their office a certificate under the hands of divers reputable householders, &c. of the parish [naming them] importing that the said householders were acquainted with the character and circumstances of the bankrupts, and verily believed, that they really by misfortune and without any fraud or evil practice had sustained the loss, &c., and did as soon as possible after the loss apply to and request the minister and churchwardens of the parish [naming them] to sign such certificates of the loss as were required by the printed proposals, that they might deliver such certificates to the Company, but the said minister and churchwardens without any reasonable or probable cause whatsoever, did wrongfully and unjustly refuse to sign any such certificate as aforesaid, whereof the Company had notice. And although a difference arose between the bankrupts and the Company after the loss happened, and before the bankruptcy, touching the said loss, and although the bankrupts always

RR 2

1795.

WOOD against WORSLEY.

ways after the happening of the said loss, until they became bankrupts, and the Plaintiffs since that time had been ready and willing to submit, and the Plaintiffs since they became assignees had tendered and offered to the said Company to submit the said difference to the judgment and determination of arbitrators, &c. yet the said Company had not paid or satis[576] fied the loss, &c., nor had they submitted the said difference to the judgment and determination of the arbitrators, &c.

The second count was similar to the first, except that it omitted the request to the minister and churchwardens to sign the certificate, and their refusal.

Pleas to the first count. 1. That the bankrupts had no interest in the house and goods consumed, concluding to the country. 2. That the loss happened by fraud and evil practice, concluding to the court. 3. That the minister and churchwardens did not refuse wrongfully, injuriously and without any reasonable and probable cause to sign the certificate, concluding to the country. To the second count there were similar pleas, as to the interest in the things consumed, and as to the loss happening by fraud and evil practice. And farther that the said dwelling-house was situate in the parish of St. Paul, Covent Garden, and that neither the bankrupts nor the Plaintiff's had procured any such certificate under the hands of the minister and churchwardens and any reputable inhabitants of the said parish not concerned in the said supposed loss, as is mentioned and required in that behalf, in and by the said printed proposals, &c.

Replication. Issue joined on the five first pleas: and as to the not procuring the certificate, that Lockyer and Bream did procure and deliver to the said Company, at their said office, such certificate as was mentioned and required by the printed proposals under the hands of divers reputable householders of the said parish, [naming them]; but that the minister and churchwardens wrongfully refused to sign any such certificate without any reasonable or probable cause, &c. concluding to the Court. Rejoinder, denying the last plea. Surrejoinder, joining issue thereon.

A verdict having been found for the Plaintiffs, a rule was granted to shew cause why the judgment should not be arrested; against which, in Hilary Term last, Le Blanc and Marshall, Serjts., shewed cause.

On

1795.

WOOD

against

WORSLEY.

On the true construction of the policy, the point to be considered is, whether the production of a certificate signed by the minister and churchwardens was a condition precedent, the performance of which was necessary to enable the Plaintiffs to recover against the insurance office. The question, what words were necessary to make a condition precedent in a contract, was formerly the subject of many nice and subtle distinctions; but it now seems agreed that no technical words are required, and whether any particular set of words make a condition pre- [ 577 ] cedent or not, depends on the intent of the parties appearing on the whole of the contract. Kingston v. Preston, cited Dougl. 688. 8vo. Now it is apparent from the words of the tenth article of the printed proposals, that the framers of it designed to make a distinction between the clause which relates to losses occasioned by foreign invasion or civil commotion, and that which directs the sufferer to produce the certificate. In the former case, they declare the company not liable for the loss in the event there described, in the latter, they begin a new sentence, and without any words of reference to the former clause, merely direct the sufferer to produce the certificate. It is not said that the money shall be payable on producing the certificate, or that until the certificate be produced, it shall not be payable, as is the case in the proposals of the Sun Fire-Office, from which those in question of the Phoenix Office are evidently taken, except in what relates to the certificate; it seems therefore probable, that the Phoenix Office purposely omitted to make the production of the certificate a strict condition to be performed prior to the recovery of the money, in order to encourage persons to resort to that office in preference to the other. If this were necessary, all the other terms were so likewise, as for instance, notice to the Company at the office in Lombard Street, as soon as possible after the loss; but suppose notice not to be given as early as possible, it could not be endured that the office should evade payment merely from that circumstance. In the cases of Oldman v. Bewicke (a) and

Routledge

(a) Oldman and another, Assignees of Ingram a Bankrupt, v. Bewicke and Others. In C. B. Michaelmas, 26 Geo. 3.

THIS was an action against the Directors of the Sun Fire-Office, upon a policy of insurance against fire: the declaration among other things stated the 10th proposal to have been as follows: viz. "Persons sustaining any "loss or damage by fire, are forthwith to give notice thereof at the office,

" and

1795. Routledge v. Burrell (a) which arose on actions against the Sun Fire-Office, it was expressly provided that the money

WOOD

against WORSLEY,

66

should

❝ and as soon as possible afterwards, to deliver in as particular an account of "their loss and damage as the nature of the case will admit of, and make "proof of the same by their oath or affirmation, (according to the form "practised in the said office,) and by their books of account, and such other proper vouchers, as shall be reasonably required, and procure a certificate "under the hands of the minister and churchwardens, together with some other reputable inhabitants of the parish not concerned in such loss, importing "that they were well acquainted with the character and circumstances of the person or persons insured, and do know or verily believe that he, she or "they really and by misfortune, without any fraud or evil practice, have sus"tained by such fire the loss and damage as his, her or their loss, to the value "therein mentioned, but till such affidavit and certificate of such insured's "loss shall be made and produced, the loss money shall not be payable; and if "there appears any fraud or false swearing, such sufferers shall be excluded "from all benefit by their policies, &c." It then stated, that the bankrupt did forthwith give notice of his loss to the society, at their said office, and as soon as possible afterwards did there deliver in as particular an account of his said loss and damage as the nature of the case would admit of, and did make proof of the same by his oath or affidavit in writing, according to the form practised in the said office, and by such other proper vouchers, as were reasonably required; and further, that the minister of the parish of Portsea, in which, &c., long before, and at the time of the loss dwelt and resided at a distance from and out of the said parish, and was wholly unacquainted with the character and circumstances of the said Ingram, and wholly unable to make such certificate, as by the said policy was required. But that the said Ingram (afterwards, &c.,) did procure and deliver to the said office, a certificate under the hands of William Thomas, &c. then and at the time of the said loss being reputable inhabitants of the said parish, who were not concerned in the said loss, importing, &c. The Defendants pleaded, First, That the premises were wilfully set on fire, and burnt down by the bankrupt. Secondly, That at the time of the supposed loss the bankrupt had no interest in the premises, but no notice was taken of the certificate required, or the want of it, in any of the pleadings, except in the declaration as above set forth. But issues being joined upon both pleas the cause went in that state to trial, and the jury found a verdict for Plaintiffs, damages 300l. the demand being for 1500/, the amount of the insurance.

A rule having been granted to shew cause why the judgment should not be arrested, on the ground that the title of the Plaintiffs to recover was not set. forth in the declaration, inasmuch as it did not thereby appear that the certificate required had been procured and produced, on shewing cause the arguments were as follow:

Against the rule it was said that the motion was grounded either on the title being defective, or defectively set forth. The latter objection was cured by the verdict, and the former waived by the defence set up in the pleas. It (a) Ante, vol. 1. p. 254.

should not be paid till the certificate was produced, which makes those cases essentially different from the present. It

is stated in the declaration that the minister lived at a distance out of the parish, and though nothing is said about the churchwardens not signing the certificate, yet it appears that many of the principal and respectable inhabitants have signed it. This is not an absolute preliminary title. Many places are not parishes; and livings may be vacant when fires happen. Here the Plaintiffs have done as much as they could; it is not denied that the persons who signed were respectable inhabitants. Matter may be supplied by intendment after verdict, Sir T. Raym. 487. Sir T. Jones, 232. So a defect in the declaration may be waived by pleading, as in Stra. 925. The Bishop of London v. The Mercers' Company, in quare impedit the Plaintiffs had not shewn sufficiently that the next turn belonged to them, there the Defendant might have taken advantage of the defect, but it was cured by pleading over. If a party takes material issues, and they are found against him, he shall not, after putting the Plaintiff to great expense, arrest the judgment. Any person may waive a benefit introduced for himself. Here material issues are taken; first, that the house was wilfully set on fire by the bankrupt; secondly, that he had no interest. The objection now made would justify the office in refusing to pay in all cases. The Plaintiff has shewn that he has conformed in all things as far as he was able, and the verdict of the jury has ascertained all that was to be expected from the certificate.

In support of the rule, it was argued, that the issues admitted only what was well and specially averred. Neither of them have a reference to the certificate.

Nor is the objection of the defective title waived by the pleas. It could not be taken by a traverse of any averment in the declaration. It must have been by pleading it specially; but this was unnecessary if the declaration be radically defective.

Lord LOUGHBOROUGH.-Though I am satisfied the verdict was right, that the fire was accidental, and that the certificate could not have been procured, because the bankrupt had not sustained all the loss he claimed, yet the rule of intendment after verdict cannot be applied where there is an absolute defect of title, as there is in this case. As to the pleas, they are wholly collateral to the title.

GOULD, J. Till the affidavit is made, and the certificate procured, the money is not to be payable: the time of payment therefore is not yet come. Though a person were a bona fide sufferer, still he is not intitled without a certificate. The stipulation is a condition precedent, that there shall be a certificate that there is no kind of fraud. Nothing is said about the churchwardens: and the excuse of the minister living at a distance is frivolous.

NARES, J.-I have had no doubt since the case was first mentioned to the Court. The stipulation is, that the office will in no case be liable, unless such certificate be produced. The Plaintiff therefore ought to aver the performance of the stipulation. There is no pretence to say that this objection is waived by the pleas.

1795.

WOOD

against

WORSLEY.

[*579 ]

Judgment arrested.

appears