Lord Mansfield." The imperfection of language is such that we have not words for every different idea; and the real intention of parties must be found out by the subject-matter. By the present policy, the life is warranted, to some of the underwriters in health, to others in good health; and yet there was no difference intended in point of fact. Such a warranty can never mean that a man has not the seeds of disorder. We are all born with the seeds of mortality in us. A man, subject to the gout, is a life capable of being insured, if he has no sickness at the time to make it an unequal contract." There was a verdict for the plaintiff.

a

4 Taunt.

It is not to be concluded, that a disorder with which a per- Watson v. son is afflicted before he effects an insurance on his life is Mainwaring, disorder "tending to shorten life," within the meaning of a 763. declaration of the Insurance Offices, from the mere circumstance that he afterwards dies of it, if it be not a disorder necessarily having that tendency.

c. 19.

In a former chapter we saw, that when the risk is entire, and Vide ante, it is once begun, there shall be no apportionment or return of premium, though it should cease the very next day after it commenced. The same rule is applicable in every respect to the premium on life insurances; for the contract is entire, and if the person whose life is insured should put an end to it the next day after the risk commences, though the underwriter is discharged, there would be no return of premium. This has never been decided in any judicial determination expressly on the point, but it has frequently been declared to be the law upon the subject by the learned Judges in the course of argument, when return of premium on marine insurances was the point under discussion. This was particularly done in the case of Tyrie v. Fletcher, by Lord Mansfield, when delivering Cowp 669. the judgment of the Court. "There has been an instance "put," said His Lordship, " of a policy where the measure is

by time, which seems to me to be very strong and apposite "to the present case; and that is an insurance upon a man's "life for twelve months. There can be no doubt but the risk "there is constituted by the measure of time, and depends "entirely upon it; for the underwriter would demand double "the premium for two years, that he would take to insure the same life for one year only. In such policies, there is a 66 genc

66

UU 2

Doug. 789.

general exception against suicide. If the person puts an "end to his own life the next day, or a month after, or at any "other period within the twelve months, there never was an "idea in any man's breast, that part of the premium should "be returned."

Afterwards in the case of Bermon v. Woodbridge, Lord Mansfield laid down the same doctrine. "In an insurance upon a "life, with the common exception of suicide, and the hands of "justice, if the party is executed, or commit suicide, in twenty"four hours, there shall be no return."

From these opinions, which have been frequently repeated in other cases, the law upon the subject of return of premium, as applicable to life insurances, seems perfectly ascertained: because, except in the case of suicide or a public execution, the question can never arise.

CHAP. XXIII.

Of Insurance against Fire.

AN insurance of this sort is a contract, by which the insurer,

in consideration of the premium which he receives, undertakes to indemnify the insured, against all losses, which he may sustain in his house, or goods, by means of fire, within the time limited in the policy. To enter upon a detail of the various advantages, which mankind have derived from this species of contract, would be a waste of time; because they are obvious to every understanding. As little does it fall within the compass of my plan to enumerate the various offices that have been instituted for the purpose of insuring property against fire; or the rules and regulations, by which they are severally governed. Some of them have been instituted by royal charter; others by deed inrolled; and others give security upon land for the payment of losses. The rules, by which these societies are governed, are established by their own managers, and a copy given to every person at the time he insures; so that, by his acquiescence, he submits to their proposals, and is fully apprized of those rules upon the compli- See 1 H. ance or non-compliance with which he will or will not be entitled to an indemnity.

I

Blackstone,

Austin v.

Drew,

There must be actual fire or ignition to entitle an assured to recover; for where there had been damage merely by heat in the chimney of a sugar-house running to the top, by neg- 2 Marsh, ligently lighting the fire without opening the register at the 130. top, the Court held that the assured could not recover, there being no ignition.

The construction to be put upon the regulations of the various offices has but seldom become the subject of judicial enquiry; few instances only having occurred in our researches upon this occasion. In the proposals of the London Assurance Company, and some of the other offices, there is a clause by which it is proUU 3

vided,

Drinkwater

v. the Cor

the London

Assurance,

2 Wils. 363.

vided, that they do not hold themselves liable for any loss or damage by fire, happening by any invasion, foreign enemy, or any military or usurped power whatsoever. It became a question, what species of insurrection should be deemed a military or usurped power within the meaning of this proviso. It was held by the Court of Common Pleas, against the opinion of Mr. Justice Gould, that it could only mean to extend to houses set on fire by means of an invasion from abroad, or of an internal rebellion, when armies are employed to support it.

. The case, in which this question arose, was an action of coporation of venant against the defendants upon a policy of insurance of a malting office of the plaintiff at Norwich from fire, in which policy there was a proviso that the corporation should not be liable in case the same shall be burnt by any invasion by foreign enemies, or any military or usurped power whatsoever, and that the defendants had not kept their covenants, to the plaintiff's damage. The defendants plead first the general issue, that they have not broke their covenants, and thereupon issue is joined. 2dly, They plead that it was burnt by an usurped power, the plaintiff replies, that it was not burnt by an usurped power, and thereupon issue is also joined. This cause was tried at Norwich assizes; a verdict was given for the plaintiff, and 4691. damages, subject to the opinion of the Court upon the following case, viz. That upon Saturday the 27th of November, a mob arose at Norwich upon account of the high price of provisions, and spoiled and destroyed divers quantities of flour; thereupon the proclamation was read, and the mob dispersed for that time. Afterwards another mob arose, and burnt down the malting office in the policy mentioned. The question is, Whether the plaintiff is entitled to recover in this action? This case was twice argued at the bar, and the Court took time to deliberate; after which, as the Judges differed in opinion, they delivered their opinions seriatim.

Mr. Justice Gould was of opinion, that the malting-office being burnt by the mob, who rose to reduce the price of provisions, the same was burnt by an usurped power, within the true intent and meaning of the proviso in the policy: to show that it was an usurped power for any person to assemble them

selves,

selves, to alter the laws, to set a price upon victuals, &c. he cited Popham, 122. where it is agreed by the Justices, that to attempt such a thing by force is felony, if not treason; and therefore judgment ought to be for the defendant.

Mr. Justice Bathurst." The words, usurped power,' in the proviso, according to the true import thereof, and the meaning of the parties, can only mean an invasion of the kingdom by foreign enemies to give laws and usurp the government thereof, or an internal armed force in rebellion, assuming the power of government by making laws, and punishing for not obeying those laws. The plea alleges that the malting office was burnt by an usurped power unlawfully exercised, but does not charge that usurped power as a rebellion; that a mob arose at Norwich on account of the price of victuals, and as soon as the proclamation was read, they dispersed; therefore judgment ought to be for the plaintiff."

Mr. Justice Clive." The words must mean such an usurped power as amounts to high treason, which is settled by the 25th of Edward the Third. The offence of the mob in the present case was a felonious riot, for which the offenders might have suffered; but it cannot be said to be an usurped power; therefore I am of opinion that judgment should be given for the plaintiff."

Lord Chief Justice Wilmot." Upon the best consideration I am able to give this case, I am of opinion, that the burning of the malting office, was not a burning by an usurped power within the meaning of the proviso. Policies of insurance, like all other contracts, must be construed according to the true intention of the parties. Although the counsel on one side said, that policies ought to be construed liberally; on the other side, that they ought to be construed strictly; in a doubtful case I think the turn of the scale ought to be given against the speaker, because he has not fully and clearly explained himself. The imperfection of language to express our ideas is the occasion that words have equivocal meanings; and it is often very uncertain what the parties to a contract in writing mean. When the ideas are simple, words express them clearly; but when they are complex, difficulties often