which the learned judge based his decision was that both the Sect. 37. language of 30 Vict. c. 23, and the cases upon the Act show that a slip was not a policy within its meaning. The Court of Appeal, on the other hand, held that the covering note was a contract for sea insurance within the meaning of the Stamp Act, 1891; though they affirmed the decision of Mathew, J., on another ground, viz., that it was invalid as a policy because it did not specify the "sum or sums insured" (≈). The Court were careful to limit their decision to the particular document, and to say nothing on the general question whether a slip can ever be stamped and sued upon. The decision of Mathew, J., on this point has, therefore, not been expressly overruled. It is, however, difficult to see how, in view of this decision of the Court of Appeal, it is now possible to contend that a cover-note which specifies the sum insured, and in other respects conforms with the requirements of the Stamp Act, is not a valid policy. Further, it seems difficult to distinguish the covering note, either as regards its form or its object, from an ordinary slip. The result seems to follow that an ordinary slip is a policy, and that Mathew, J.'s, decision to the contrary has been impliedly overruled. The somewhat startling consequences of this opinion have already been pointed out, and it is a matter of regret that the legislature has left the law in so unsatisfactory a state (a). (2) [1898] 2 Q. B. 351. (a) If a slip can be considered a policy of insurance, the question may arise whether, as it can be stamped on payment of a penalty, it can ever properly be admitted in evidence when unstamped. Stamp Act, 1891, s. 14 (1). In Ionides v. Pacific Fire Ins. Co. (1871), L. R. 6 Q. B. 674, the Court of Queen's Bench seem clearly to have considered that if they had held the slip to be a policy, they would have been obliged to reject it as evidence. The Court of Exchequer Chamber (L. R. 7 Q. B. 517) only said that the slip, though a nullity VOL. I. as a contract, could be put in evidence E Sect. 38. 38. We have already seen that a policy of insurance is not Does the slip valid, by reason of sect. 93 (3) of the Stamp Act, 1891, unless requisites of a it specifies the particular risk or adventure (a), the names of valid policy? the subscribers or underwriters, and the sum or sums insured. contain the Agreements to issue policies. Further, by 28 Geo. 3, c. 56, it must contain the name of the assured, or of someone effecting the policy on his behalf. Assuming that a slip can be treated as a policy, it will be invalid unless it contains these particulars. There are, no doubt, slips or cover-notes for floating policies in which some of these particulars are not sufficiently described; but it is submitted that the ordinary slip for a voyage or time policy contains an adequate description of the necessary particulars (b). The ordinary perils insured against are not usually specified in the slip; but there is authority for saying that these perils are not required to be expressly stated in a policy, as being the risk or adventure insured, within the meaning of the Stamp Act (c), and their subsequent insertion in the policy is not in consequence of any express agreement between the parties. An expert can say with certainty, from a mere perusal of the slip, what these perils and all the terms and conditions of the insurance are intended to be (cc). It may be suggested that when the slip is only initialed the names of the underwriters do not sufficiently appear; but this is probably an ambiguity which can be explained by parol evidence. 39. An express agreement to issue a policy sometimes forms part of a cover note issued by a company. As by sect. 91 of the Stamp Act, 1891, the term "policy of insurance" includes every writing whereby any contract of (a) In Edwards v. Aberayron Mutual Ship Ins. Society (1875), 1 Q. B. D. 563, the Court of Queen's Bench seem to have held that by "risk or adventure" is meant the voyage or period of time covered by the insurance. (b) See Gow, 23, 24. (e) Edwards v. Aberayron, &c. Ins. Society, supra. (ce) Two specimens of slips for Lloyd's policies are given in Ap. pendix C. insurance is agreed to be made, it seems that an agreement Sect. 39. to issue a policy, if in writing, would be a policy within that Act, and that it could not be enforced unless it contained the particulars required by the Act. It also seems clear that any agreement to execute a policy is itself a contract of sea insurance within the meaning of sect. 93 (1) of the Act (d), and therefore, if verbal, is invalid under the Act. Apart from the provisions of the Stamp Act, there is no reason why specific performance of an agreement to issue a policy should not be ordered in a proper case (e). in the United In the United States, where the restrictions of the revenue The practice law do not interfere, and the great bulk of sea insurance States. business is carried on by companies, it is very generally the case that a memorandum of the contract, or an agreement to insure, is made out and subscribed before executing the policy in such case "the usual practice," says Phillips, is, "to enter the agreement on the books of the insurance company, subscribed by some officer authorized to bind the company. Such a memorandum is binding on the company to make out a policy if the premium is paid in due time" (ƒ). Many questions have arisen, and very elaborate decisions taken place, in the United States as to what will amount to the consummation of an agreement to insure between parties in different places, communicating by letter or message (g). (d) See Mallet v. Bateman (1865), L. R. 1 C. P. 163, that an agreement for guarantee is a guarantee within the meaning of the Statute of Frauds. See also In re London Mar. Ins. Association, Smith's Case (1869), L. R. 4 Ch. 611, per Selwyn, J., at p. 614, that a contract for a policy of insurance was within the terms of 35 Geo. 3, c. 63. (e) See Bhugwandass . Netherlands India Ins. Co. (1888), 14 App. Cas. 83, a Rangoon case in which the Privy Council ordered specific performance of a contract to issue a policy in terms of an open cover-note. Royal Exchange Ass. Co. v. Tod (1892), 8 T. L. R. 669, was an action before Romer, J., for specific performance of an agreement to issue a policy, in which the question at issue was what classes of voyages were covered by the slip. The claim was dismissed on the merits, and the point that an unstamped slip did not constitute an enforceable contract seems neither to have been taken by the defendant nor by the learned judge. (f) 1 Phillips, s. 13. (g) Ibid. s. 13 et seq. Phillips details at length the cases on this subject; see also 1 Duer, 66, 109 et seq. Sect. 40. Corrections and alterations in the policy at Common Law. Can a policy be rectified? Case in which a Court of Equity has exercised this power. 40. The policy is the only legal evidence of the terms of the contract of marine insurance; and, as such, will be avoided, according to one of the best-known rules of the common law (h), as against any party, by any material alteration introduced into it, without his consent, after it has once been entered into by him (¿). 41. Whether, when there has been a mistake made in drawing up the policy, and its terms do not rightly express the true intention of the parties at the time they entered into the contract, there is power to rectify it, is a question on which there have been conflicting decisions. There can be no doubt that before the Stamp Act of 1795 the Courts of Equity did exercise such a power when, in the words of Story, J., the mistake was "made out by the clearest evidence, according to the understanding of both parties, and upon testimony entirely exact and satisfactory” (j). Thus, where the risk was described in the early part of a policy as a voyage "at and from Fort St. George,” yet in that part of the policy which defines the duration of the risk, the words were "beginning the adventure from and immediately following the ship's departure from Fort St. George" (k), and it was proved that the policy had been filled up from a label, signed by the agent of the assured and two of the directors of the company, in which the risk was described to be "at and from" Fort St. George, and it was (h) Master v. Miller (1797), 4 T. R. 320; 2 H. Bl. 140; 1 Smith's L. C. 10th ed. 747; Fairlie r. Christie (1817), 7 Taunt. 416; Davidson v. Cooper (1843), 11 M. & W. 778, 802; in error (1844), 13 M. & W. 343; Suffell v. Bank of England (1882), 9 Q. B. D. 555, C. A. See the cases on policies, post, ss. 43, 44. (i) There is a questionable ruling of Lord Ellenborough's, that (although the contract of each underwriter is separate) the policy is to be deemed to be still in fieri, still incomplete, until the whole amount of the insurance has been subscribed. Robinson v. Tobin (1816), 1 Stark. 336. The point decided in that case was one of pleading. (j) Andrews v. Essex Fire and Marine Ins. Co. (1822), 3 Mason's Rep. 6. () It is upon this that Phillips founds his remark, that even in this case the decision of the Chancellor seems to be rather a construction of the whole policy than an alteration of its provisions. 1 Phillips on Ins. 8. 117. not disputed by the underwriters that the label expressed the Sect. 41. intention of both parties, Lord Hardwicke held that the policy should be considered one "at and from " (1). the Court power, In another case, where rectification of a policy was sought, Case in which but the evidence appeared to be contradictory, Lord Hard- refused to wicke dismissed the bill, at the same time stating that while exercise this the Court of Chancery had jurisdiction to relieve in respect of a plain mistake in contracts, if reduced into writing contrary to the intention of the parties, it would only exert such power upon being satisfied by the strongest possible evidence that a mistake had really been made (m). Coulson, In 1869, in Mackenzie v. Coulson (n), a bill was filed by Mackenzie v underwriters for the rectification of a policy, for the reason that the clause "warranted free of particular average" had by mistake been omitted, and they produced the slip in which the clause appeared. But James, V.-C., dismissed the bill on the ground that there can be no rectification, unless there has been an actual concluded contract antecedent to the instrument which it is sought to be rectified, and that the slip did not constitute a contract (o). On the other hand, Barnes, J., in a subsequent case ordered the rectification of a policy which was not in accordance with the slip (p); and recently, in a case in which Mackenzie v. Coulson was cited, Mathew, J., held that he had power to order the rectification of a policy, though in the absence (7) Motteux r. London Ass. Co. (1739), 1 Atkyns, 545. (m) Henkle v. Royal Exch. Ass. (1749), 1 Ves. Senr. 317. (n) (1869), L. R. 8 Eq. 368. (0) The principle of this decision is approved by Sir Edward Fry; Specific Performance, s. 791, 3rd ed. Story seems to consider that a Court of Equity has power to rectify a preliminary contract as well as an instrument embodying an antecedent contract; Equity Jurisprudence, 8. 159. If the view already ex pressed, that a slip itself can be (p) The Aikshaw (1893), 9 |