verified by their signature, in full or by initials, it cannot be said that any signature is essential. It has been held that where certain alterations were inserted in a policy by the insurers, without any further signature by them, they were bound. This case was peculiar in its circumstances and very instructive as to the manner in which insurance companies are bound by the acts of their offices.1 We have said that any alteration may be made by the ing one underwriter for another was binding on the substituted underwriter and the assured, although it was only signed by the insurance broker. 1 In Warren v. Ocean Insurance Co., 16 Maine, 439, the alteration was inserted in the policy by consent of both parties, but not signed. It was held valid. This action was one of assumpsit on a policy of insurance on the brig Pactolus, for her voyage from Havana to her port of discharge in the United States. After the policy was executed, the plaintiff received a letter from the master, saying that he was at Havana partly loaded, and should proceed next day to Matanzas to finish loading. Plaintiff therefore desired liberty to go to Matanzas, and accordingly the following words were written by the secretary across the face of the policy: "The brig herein named, with cargo, has liberty to proceed from Havana to Matanzas to finish loading, and the risk to be continued at and from thence to her port of discharge in the United States," &c. In going from Havana to Matanzas the vessel was lost by perils of the sea. In the company's by-laws there was a provision, that "on concurrence of the president, or in case of his absence or sickness, on the approbation of two directors, as to the terms of insurance, the secretary shall then proceed to fill up and execute such policy, which, when completed, is to be immediately recorded, and shall be con sidered binding on the company and on the insured," &c. In the course of the negotiation for liberty to go to Matanzas, after the secretary had written the agreement upon the policy, before he had recorded it, and while in the act of so recording, two of the directors came in with the news of the loss of the Pactolus. The secretary ceased writing, and the president and one of the directors told him to stop where he was. Upon this state of facts, the defendants contended that the evidence did not prove that any contract was made and completed, the contract not being first written, signed, and recorded, according to the by-laws of the company. The case of Head & Amory v. Prov. Ins. Co., 2 Cranch, 127, was relied on by defendants. The question in that case was whether a certain paper, written by the secretary, but not signed, was a settlement or cancelling by the president and directors. What is decided there is, that the act of incorporation is to the defendants an enabling act; it gives them all the power they possess; it enables them to contract, and when it prescribes to them a mode of contracting, they must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated. It is said in the opinion that a contract varying a policy is as much an instrument as the policy itself, and therefore can only be executed in the manner prescribed by law. The court, after re agreement of both parties, but not by either alone, and this rule is equally applicable to one party as to another. Although the assured, by an unauthorized alteration, may deprive himself of all remedy under the policy, he has no right, even in cases exempt from fraud, to consider the contract as wholly rescinded, so as to entitle him to demand a repayment of the premium. When the contract is yet imperfect and inchoate, the assured, by preventing the inception of the risks, may prevent it from becoming operative, and in effect dissolve it; but in no other case can he release himself by his own act from his own obligations.1 ferring to this case, say: "In the present case, there was no agreement to vacate the first policy, but merely to heal the infirmity resulting from the deviation. The inquiry now is rather a question as to the effect of evidence, whether the company, through their officers, have assented to the proposition of the plaintiff for the healing, and acted under it conformably to the requisition of the charter and by-laws of the corporation. The verdict has established that it was the same policy, and that the healing was completed..... On the evidence we find that all the important acts to complete the contract, as between the parties, were done before the secretary began to record the healing. This particular matter was to be performed principally for the benefit and accommodation of defendants. We must regard the previous signing by the officers was by them approved and adopted as sufficient as to the healing clause, without a reiteration of the form of running over with a pen the same letters of their names. The beginning to record the healing was such a subsequent act, as on this part of the subject carries indubitable presumptive evidence that all the previous necessary forms had been complied with. We cannot exclude from our consideration the usages of the parties, which we consider were rightly introduced in proof." 1 1 Langhorn v. Cologan, 4 Taunt. 330. In this case the policy was in the usual printed form, "upon any kind of goods and merchandises, and also upon the body, tackle, &c., of the ship, &c., at and from," &c., no words in writing, descriptive of the specific subject of insurance having at that time been inserted. No value was declared. The plaintiff afterwards inserted the words, "100 hhds. fine sugar, 60 hhds. molasses, and 20 tons fustick." Several of the underwriters assented, but defendant did not. Mansfield, C. J.: “As to the return of premium, suppose the assured tears the seal off his policy, can he by his own act compel the assured to return the premium? The underwriter has fulfilled all his part; the assured can no more compel the underwriter to return the premium, than the underwriter can compel him to relinquish the contract." There are circumstances, however, under which it is in the power of the insured to avoid the contract. For the contract is, substantially, a promise by the insurers to indemnify the insured against a certain risk if that risk be incurred, and a promise of the insured in return to pay premium to the insurers No one would suppose that the insured could at his own. pleasure announce to the insurers that he had rescinded the policy, and thus absolved himself from his obligation to pay the premium, and it is equally true that the insurers have no such power. A company may become insolvent, and for that reason vote to cancel all their policies, but this vote with notice thereof to the insured does not put an end to the contract, even if pro rata premium is offered to be returned to him, unless the insured consents to this rescission.1 And it has been held that if this vote of annulment be conditional, it has no more validity unless assented to.2 if their promise of indemnity attaches. If therefore no part of the risk attaches, either because no part of the goods is shipped (Martin v. Sitwell, 1 Show. 156; Graves v. Mar. Ins. Co., 2 Caines, 338; Waddington v. Union Ins. Co., 17 Johns. 23), or because no part of the voyage takes place (Forbes v. Church, 3 Johns. Cas. 159; Murray v. Col. Ins. Co., 4 Johns. 443), or because the insurance was predicated on a fact about which the parties were mistaken (as a blockade. Taylor v. Sumner, 4 Mass. 56), or because the insured had no interest (Routh v. Thompson, 11 East, 428), or because the vessel was unseaworthy, and consequently the risk never attached (Porter v. Bussey, 1 Mass. 436; Taylor v. Lowell, 3 Id. 331; Commonwealth Ins. Co. v. Whitney, 1 Met. 21, 23; Scriba v. Ins. Co. of N. A., 2 Wash. C. C. 107), and in all such cases the whole premium is returnable. This rule gives to the insured the power of avoiding the contract, in whole or in part, after it is made. “Where the risk has not been run," says Lord Mansfield, "whether it be owing to the fault, pleasure, or will of the assured, or to any other cause, the premium shall be returned." Tyrie v. Fletcher, Cowp. 666. See post, chapter on Premium. But the assured cannot annul the insurance by serving on the underwriters a notice of his desire to put an end to the contract, if the voyage is not actually abandoned. New York Fire M. Ins. Co. v. Roberts, 4 Duer, 141. "It was not in the power of the plaintiffs (the insurers) to get rid of their liabilities by a mere vote to close their business, and a notice of such vote to policy holders. The assent of the in#sured was necessary." Alliance Mut. Ins. Co. v. Swift, 10 Cush. 433. 2 In New England Mut. F. Ins. Co. v. Butler, 34 Maine, 451, it was held, that a vote of a mutual-insurance company, that if the assessments upon its premium notes should not be punctually paid, the contracts of insurance previously made by the party failing to pay should be suspended, was of no validity unless assented to. SECTION XIV. Of Mistakes in a Policy; their Effect in Law and in Equity. Ir may be proved that there is a material mistake in the policy, and that by reason of such a mistake it does not express and conform to the intentions and agreements of the parties. If the action in which this mistake is proved be an action at law, it seems to be settled, although not without some doubts expressed, which, however, we think unreasonable, that the court has no power to correct a mistake or to avoid its effect, which must be to annul the contract. It seems, however, to be equally well settled that a court of equity has the power to correct a mistake and reform the policy. This has been done in many cases. From them we should draw the following principles as those which govern the court in the exercise of its power. In the first place we apprehend that the mistake may be corrected, whether it be a mistake of law or one of fact.3 1 Constable v. Noble, 2 Taunt. 403; Kaines v. Knightly, Skin. 54; Mellen v. National Ins. Co., 1 Hall, 452; Chamberlain v. Harrod, 5 Greenl. 420; Cheriot v. Barker, 2 Johns. 351; Manly v. Un. Mar. & Fire Ins. Co., 9 Mass. 85. In Barrett v. Union Mut. Fire Ins. Co., 7 Cush. 175, Fletcher, J., said: “If from mistake or fraud an agreement is so defective, that instead of conveying the meaning of the parties, it expresses a different or opposite intent, if relief can be given at all, it must be sought exclusively in a court of equity. A court of law must act on the agreement as it is; it cannot strike out or change any part or add anything to it, so as to contradict or vary the agreement contained in the written instrument." * Motheux v. London Ass. Co., 1 Atk. 545; Collett v. Morrison, 9 Hare, 162, 12 Eng. L. & Eq. 171; Hogan v. Delaware Ins. Co., 1 Wash. C. C. 419; implied by Lord Eldon, 2 N. R. 322; Graves v. Mar. Ins. Co., 2 Caines, 339; Flint v. Ohio Ins. Co., 8 Ohio, 501; Firemen's Ins. Co. v. Powell, 13 B. Monr. 311; National F. Ins. Co. of Baltimore v. Crane, 16 Md. 260; Dow v. Whetten, 8 Wend. 160; Graves v. Boston Mar. Ins. Co., 2 Cranch. 419, 441. See also Baker v. Payne, 1 Vez. 456, 1 Duer, Ins. 71; Andrews v. Essex F. & M. Ins. Co., 3 Mason, 6. This power of a court of equity to reform a policy is only a particular application of the general power to rectify a mistake in written instruments, and the exercise of this power depends in all cases upon the same principles. Oliver v. Mut. Commercial Marine Ins. Co., 2 Curtis, C. C. 277, 299. Curtis, J.: "In this class of cases I apprehend it is wholly immaterial whether the party has failed to obtain that to which he was entitled through a mistake of fact or of law." The court suppose, in illustration, a contract in writing, for In the next place, we should say that it is an exercise of power which a court of equity, if not reluctant to make, would make only on the strongest and clearest evidence, and for the strongest reason.1 Declarations of this kind have been repeatedly and em a valuable consideration, to convey a tract of land; and through mutual mistake of the law some legal formality, is omitted, which renders the deed inoperative. Inasmuch as a court of equity would have decreed specific performance of that contract, if no deed at all had been given, so it will give effect to the contract by reforming an invalid deed. Findlay et al. v. Hynde, 1 Peters, 241. And the following language is adopted from Hunt v. Rousmanier, 1 Peters, 1: "Where an instrument is drawn and executed, which professes or is intended to carry into execution an agreement, whether in writing or by parol previously entered into, but which, by mistake of the draughtsman, either of fact or law, does not fulfil, or violates the manifest intention of the parties to the agreement, equity will correct the mistake so as to produce a conformity of the instrument to the agreement." Where a mortgagee applied for insurance through a local agent of a company, intending to procure an insurance of his mortgage interest, and so stating to the agent, but the agent drew the application as for an insurance on the property itself, in the name of the mortgagor, and as his property, the amount to be payable in case of loss to the mortgagee, and so made the application, and had the policy so made in the belief that such was the proper legal mode of effecting an insurance on the mortgage interest, it was held that the mistake could be corrected by a court of chancery, although it was one of law and not of fact; the court saying: "There was a mutual mistake as to the proper mode of filling out the papers on both sides. The application was made out in the wrong name, and the policy was made to the wrong person. But there was no fraud or misrepresentation. The papers would have been made out right if they had known how to do it, and it is immaterial whether the mistake was one of fact or of law. Woodbury Savings Bank v. Charter Oak Ins. Co., 31 Conn. 517. See also Stedwell v. Anderson, 21 Conn. 139. 1 To justify the remedial action of the court, the existence of the mistake, if positively denied by the insurer, must be established by proof morally irresistible. Lord Thurlow (1 B. C. C. 341) says that it must be "strong, irrefragable." See the remarks of Mr. J. Story on this language, 1 Sto. Eq. § 158. "The cases require the mistake to be made out in the most clear and decided manner," and the proof "demonstrative." Kent, Ch. 2 Johns. Ch. 633. "There ought to be the strongest proof possible." Per Lord Chancellor Hard-· wicke, Henckle v. Royal Exch. Ass. Co., 1 Ves. Sen. 317. See also Graves v. Boston Mar. Ins. Co., 2 Cranch, 419, 441; Lyman v. United Ins. Co., 2 Johns. Ch. 630; Gillespie v. Moon, Id. 585; Phoenix Ins. Co. v. Gurnee, 1 Paige, Ch. 278; Woodruff v. Columbus Ins. Co., 5 La. Ann. 697; National Fire Ins. Co. of Baltimore v. Crane, 16 Md. 260. In Andrews v. Essex F. & M. Ins. Co., 3 Mason, 6, 10, Mr. Justice Story said: "There cannot at the present day be any serious doubt that a court of equity has authority to reform a contract, where there has been an omission of a |