ÆäÀÌÁö À̹ÌÁö
PDF
ePub

effected between the 1st day of December and the 31st day of December, the proportionate premium up to such 31st day of December shall be paid on the day of the date of the policy:

39. Every policy dated on or between the 1st and 15th of any month, shall have the proportionate premium up to the 31st day of December next ensuing calculated from the 1st day of such month; and any policy dated on or between the 16th and the last day of each month, shall have such proportionate premium calculated from the 16th day of such month:

"40. Those of the assured who during the year have had claims for losses admitted by the society prior to the premiums for such year falling due, shall be entitled to set off such admitted claims against such premiums:

41. If the premium on any policy shall not be paid within fifteen days after the same shall fall due, the directors may, with the approbation of the council, either cancel and declare such policy void, or enforce the payment of such premium:

42. In any case of loss, the assured is required to send in his claim to the directors within ten days from the date of the occurrence of such loss, and to state the grounds on which such claim is made, and whether he is or is not assured in any other society on account of such loss: and the assured shall furnish with such claim,-(a) An invoice of the goods sold, in reference to the non-payment for which the loss is claimed, with the date of sale,-(b) An account current showing all the transactions between the assured and the debtor, *commencing at least six [*682 months prior to the delivery of such goods, and continued down to the date of making such claim,—(c) All documents tending to establish the debts, and all securities (if any) given by the debtor on account thereof,-(d) An authority to the society to act in the name of the assured against such debtor:

43. Any loss shall be considered to have occurred, by the debtor having become bankrupt, insolvent, or called a meeting of his creditors, or suspended payment, or ceased to carry on business.

44. The directors shall cause all claims for losses to be examined into and specially reported on, and shall refer the same to the council at their next ordinary meeting; and the council shall as speedily as possible either admit such claims, or any part thereof, or refer them to the decision of the half-yearly meeting of the council; and the officers or clerks who have investigated such claims, shall attend all meetings of the council, and give such explanation thereof as may be necessary:

45. When any claim shall have been referred to such half-yearly meeting as herein before provided, the assured shall have at least ten days' notice of such meeting, and shall be at liberty to attend such meeting either personally or by proxy; and the council shall forthwith at such meeting decide upon the admission or rejection of the whole or VOL. XV.-58

2Q

any part of the claim so referred; and by the decision of the council the assured shall be absolutely bound and concluded in the matter of such claim:

46. When any claim has been so rejected, the assured shall be at liberty to withdraw all the documents and securities referred to in Art. 42, upon payment of any expenses incurred by the society in proceeding against his debtor under the authority named in such last-mentioned article:

"47. All claims admitted by the council shall be paid *by the

*683] directors out of the premium fund of the year in which such

claims shall have been made; and the accounts of the society shall be annually balanced up to the 31st of December in each year: and, where any claims have been admitted before the 16th of May in any year, the directors shall make such payment on account of such claims as shall have been recommended by the council, provided that such payment is not more than 40 per cent. on the amount thereof; and such payment shall be made on or before the 31st of July following; and all other claims admitted during the remainder of the year, together with the balance of the claims first mentioned, shall be paid on or before the 31st of January following:

66

48. If, in any one year, the premium fund shall not equal in amount the sums payable on account of claims admitted, the reserved fund shall be charged with the deficiency, to the extent of a moiety of such fund:

49. If the premium fund, together with such moiety of the reserved fund, be not sufficient to pay in full the respective amounts payable to the assured for such year, then the assured shall only be entitled to be paid such rateably reduced proportion of such amounts as the total of the premium fund and such moiety of the reserved fund will produce; but, in every such case, if the society has received, or thereafter may receive, any sum due to any assured from any debtor through whom any loss has arisen in such year, the person assured shall be entitled to such sum, subject to such deduction as is hereinafter mentioned, until he has received the full amount payable to him by the society:

50. Whenever the society shall receive from the debtor the sum due, or any portion thereof, then an amount equal to the sum recovered, but subject to such deduction as is hereinafter mentioned, shall be forthwith paid to the assured, and shall be considered as paid on *account of any claim which may be admitted by the council in reference to such debt:

*684]

"51. In order to guard against undue speculations on the part of ́the assured, it is provided,—(a) That the total amount of claims in favour of any assured in any one year shall be limited to one-tenth of the total amount of the annual returns upon the face of his policy or policies,-(6) That any claim made in respect of losses arising from the non-payment of one person or firm only, shall be admitted only to

the extent of a moiety of the total amount which any assured is entitled to have in any one year,-(c) That, under any circumstances whatever, such last-mentioned admitted claim shall be limited to the sum of 30007.,-(d) That, in order to make every assured his own assurer to a limited extent, every admitted loss shall be liable to a deduction of 10 per cent., and the fund so deducted shall be taken from the premium fund, and added to the reserved fund:

66

52. That, unless the council otherwise decide, no claim for loss. shall in any case be admitted, which has arisen from the sale of goods delivered within ten days prior to the debtor committing any act of bankruptcy on which he shall be adjudged a bankrupt, or filing any petition for relief as an insolvent, or calling a meeting of his creditors, or suspending payment:

53. The assured shall in every case first obtain the consent of the directors or manager of the society before taking any legal proceedings against any debtor; otherwise the council may, if they see fit, disallow any claim for a loss arising from the non-payment of such debtor:

54. Every assured shall, if required, give to the council satisfactory proof by statutory declaration, or otherwise, of the accuracy of all statements made by him relating to the contents of his policy, or any claim he may have made:

*55. Where, upon investigating any claim, it shall appear [*685 that the assured has declared on the face of his policy for less than the actual total amount of the returns of his business during the year in which the claim is made, then the amount of claim admitted by the society shall be proportionally reduced: provided also, that, when it shall appear to the satisfaction of the council that such declaration has been wilfully and fraudulently made for too small an amount, then the directors, at the request of the council, but not otherwise, may declare the policy of such assured void; and such assured shall forfeit all claims and rights under the same:

56. The directors may exercise their discretion as to acting upon the authority given by the assured, at the time of making any claim in accordance with Art. 42; and any proceedings taken thereunder to recover any debt due to such assured shall, if unproductive, be at the sole cost of the shareholders; but the balance of any moneys received from any debtor, after deducting the expenses incurred, shall be added to the premium fund of the year in which such loss shall have been recovered: provided always, that such balance shall first be subject to the operation of Arts. 49, 50, and 51:

57. Every claim for loss must be made within six calendar months after the expiration of the usual credit; but no claim for any less sum than 51. shall be made by any assured, or admitted by the council:

58. That, unless some reason to the contrary be proved to the

satisfaction of the council, all payments made to any assured by any debtor after realizing the produce of any goods delivered by such assured since the date of his policy, shall be considered as payment made on account of such goods; and, after the expiration of the time of credit given on account of goods sold prior to the date of the policy, all payments shall be *considered as made upon account of goods delivered since the date of such policy:

*686]

59. If any assured claiming on account of loss be assured in any other society in reference to such loss, his claim shall only be admitted to an amount proportioned to the sums guarantied by this and such other society respectively:

"60. That, if it shall appear to be for the mutual interest of the assured, the directors, at the request of the council, but not otherwise, shall have power to cancel any policy, and written notice thereof shall be given to the assured, by delivering the same to the assured personally, or at his usual or last known place of business, within seven days from the day on which such policy has been so cancelled; and such policy shall from the date of the service of such notice be null and void to all intents and purposes; but the assured shall be entitled to every benefit secured by such policy up to the date of its being so cancelled, and shall be liable to pay the proportion of premium due up to such date."

The declaration then proceeded to aver that the plaintiffs had done all things necessary on their part, and had been ready and willing to do all things, according to the said policy, rules, and regulations, which it was necessary that they should be ready and willing to do, and that all things had happened which it was necessary should happen, to entitle the plaintiffs to be paid and reimbursed by the defendants the loss thereinafter mentioned; and that a reasonable time to pay or reimburse such loss had elapsed; and that, during the continuance of the said agreement, a loss arose to the plaintiffs from the bonâ fide sale and delivery of goods by the plaintiffs for the purposes of trade to one Gibbons, a debtor of the plaintiffs, being at the time of such sale and delivery a trader within the meaning of the laws for the time being in *force relating to bankrupts: yet that the defendants had not *687] paid or reimbursed the plaintiffs in respect of the said loss, but had therein wholly failed and made default, contrary to the said policy. There was also a count for money payable by the defendants to the plaintiffs for money received by the defendants for the use of the plaintiffs, and for money found to be due from the defendants to the plaintiffs upon accounts stated between them: And the plaintiffs claimed 15002.

The defendants pleaded, amongst other pleas,-fourthly (to the first count), that, after the making of the said policy, and more than fifteen days before the commencement of this suit, the premium of 421. payable

by the plaintiffs on the 1st of December, 1853, as in the said policy mentioned, fell due and became payable, and was not paid within fifteen days after the same so fell due; whereupon the directors of the said society, with the approbation of the said council, cancelled the said policy, and declared the same void,-whereof the plaintiffs then, and before this suit, had notice.

To this plea the plaintiffs demurred,—the ground of demurrer alleged, being, "that it did not appear (by the plea) that the premiums became due, or that the policy was declared to be void, before the loss was incurred and became payable." The defendants joined in demurrer.

Willes, in support of the demurrer.(a)-It appears from the record, that the policy declared on was effected on the 10th of February, 1853; that a loss arose whilst the policy was subsisting; that, on the 1st of December, 1853, a certain premium became due from the plaintiffs *to the society, and was unpaid for fifteen days; and that the [*688 directors, with the approbation of the said council, cancelled the policy, and declared the same void. [CRESSWELL, J.-From what time? JERVIS, C. J.-Ab initio.] The right to cancel, it is submitted, never arose in fact. A somewhat analogous question arose in the case of Hartshorne v. Watson, 4 N. C. 178, 5 Scott, 506, 6 Dowl. P. C. 404. An indenture of lease contained a proviso, that, in case of default on the part of the lessee, his executors, administrators, or assigns, in payment of the rent or performance of any of the covenants on his and their part, it should be lawful to the lessor to re-enter and hold the premises as if the indenture had not been made; and it was held, that a re-entry for non-payment of rent, was no answer to an action against the assignee for rent antecedently accruing. [JERVIS, C. J.-The proviso does not say that the lease shall be altogether. void, but that, "from the time of re-entry, the lessor shall hold the premises as if the indenture had never been made." That case has very little application.] The 40th rule,-which provides that "those of the assured who during the year have had claims for losses admitted by the society prior to the premiums for such year falling due, shall be entitled to set off such admitted claims against such premiums,"-excludes what the defendants are contending for. By the previous provisions, and by the terms of the policy, the assured can only recover what the council shall award, pursuant to the 44th or 45th rule. [JERVIS, C. J.-It does not follow from what is stated on this record, that the defendants owed the plaintiffs enough to cover the amount of premiums due.] If the amount of premiums due exceeded the loss, the defendants might have shown that by their plea. The meaning of the 40th and 41st sections, is, that the directors shall have the power of cancelling and declaring void a

(a) The point marked for argument on the part of the plaintiffs, was as follows:-"That it does not appear that the premium became due, or that the policy was declared to be void, before the loss was incurred and became payable."

« ÀÌÀü°è¼Ó »