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to pay to the Company so much of the share or shares held by him, her or them in the capital as should not have been paid up; and that no other person should, on any account whatsoever, be in anywise subject or liable to any claim or demand in respect of any policy of insurance to be issued or granted by the Company. Secondly, in case of difference of opinion as to the amount of compensation payable in any case, the question should be referred to the arbitration of a person to be named by the secretary for the time being of the Master of the Rolls, and all expences and costs should be subject to the decision of such arbitrator, and the award madeon such arbitration was to be taken as a final settlement of the question, and might be made a rule of Court. Thirdly. All premiums and other moneys which should have been paid to the Company in respect of any policy which might have become void, should, subject to the preceding regulations and conditions, be forfeited to the Company, and all claims upon the Company in respect of such policy should cease and be absolutely void. Fourthly. In all cases where any policy should, either originally or at any time after its commencement, be or become subject to any mortgage or mortgages, trust or trusts whatsoever, the receipt of the mortgagee or mortgagees, trustee or trustees, for the time being, for the money which might become payable in respect of such policy should, notwithstanding any equitable claim or demand whatsoever of the person or persons beneficially entitled to the policy, be an effectual discharge to the Company and all proprietors and members thereof. Fifthly. Before payment of the sum insured by any policy, proof satisfactory to the directors



should be furnished of the death or deaths, injury or in- 1861. juries, accident or accidents, or other event or events on BRAUNSTEIN which such sum should become payable, and, if required Accid by the directors, a medical or other agent of the Com

Insurance pany was to be admitted to see the person killed or Company, injured, and to examine the wound or injury received by him, when and as often as, in the opinion of the directors, it might be necessary. Sixthly. Every policy granted by the Company was granted upon the terms and conditions in the deed of settlement upon which the Company was formed, the provisions of which should have the same force and effect as if inserted in the policy. Seventhly. That if at any time it should be determined by the Company, in the manner specified in the deed of settlement, that the Company should be dissolved, a dissolution thereof should thereupon take place, in the manner and subject to the conditions contained in the deed of settlement, and thereupon the insurance effected by the within written policy should cease and determine, but the insurer should be entitled to receive back, from the funds of the Company then remaining unapplied and undis. posed of, the amount of the premium within mentioned, provided the same should be claimed within six calendar months after notice of such dissolution should have been given in the London Gazette and in two London newspapers. Averment, that the declaration referred to in the policy was in all respects true, and that the terms and provisions of the deed of settlement, so far as the same were applicable to policies of the Company, were in all respects the same as and no other than the terms and provisions of the policy thereinbefore set forth : that the policy remained and continued in force up to and until, and upon and after, the 21st August, A. D. 1859, and




DEATH Insurance Company

that, whilst the policy was in full force as aforesaid, the plaintiff, to wit on the day and year last aforesaid, while travelling on a line of railway in Great Britain by a passenger train, propelled by steam power, received and suffered bodily injury of a serious nature from a railway accident directly affecting himself within the meaning of the policy, which accident greatly injured the plaintiff's health and constitution, and he thereby became sick, sore, lame and disordered, and so remained and continued for a long space of time, during all which time the plaintiff was hindered and prevented from attending to his affairs and business.

The declaration concluded by averring performance by the plaintiff, and breach by the defendants.

Fourth plea. That by the deed of settlement of the said Company mentioned in the said conditions printed on the back of the said policy, it was declared and provided that, before payment of the sum insured by any policy, proof satisfactory to the directors of the said Company should be furnished by the claimant of the death or accident together with such further evidence or information, if any, as the said directors should think necessary to establish the claim. And the defendants say that, after the plaintiff had sustained the said injury by the said accident, and had made his claim in writing under the said policy upon the said Company for compensation in respect thereof, the directors of the said Company thought it necessary that the plaintiff should furnish to the said Company certain evidence or information to establish the said claim, of which the plaintiff, in a reasonable time after making the said claim and before the commencement of this action, had notice, and was then required by the said directors to furnish the

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said evidence or information to them ; which the plaintiff 1861. wholly neglected and refused to do, although he could BRAUNSTEIN and might have obtained and furnished the same, nor ACCIDENTAL did he furnish any proof satisfactory to the said directors

Insurance of the said injury sustained by him.

Company. Fifth plea. That, after the plaintiff had sustained the said injury and had made his claim in writing under the said policy upon the said Company for compensation in respect thereof, and before this suit, the amount or sum of money to which the plaintiff was entitled, by way of compensation for the said injury, became and was, and still is, a matter in dispute and difference between the plaintiff and the defendants, and although the defendants then were and ever since have been willing to refer the same to arbitration in manner mentioned in the conditions endorsed on the back of the said policy, yet the amount of the said compensation has never been settled or ascertained by arbitration as in the said conditions mentioned.

To the fourth plea the plaintiff replied that the said evidence or information which the plaintiff was required by the said directors to furnish to them, was not evidence or information which the said directors ought properly or reasonably to have required the plaintiff to furnish. And that the plaintiff did, duly and in accordance with the said policy and conditions, furnish, supply and provide the defendants, the said directors, and all other persons, with all due, reasonable, proper and sufficient evidence and information to establish the said claim, and such as ought reasonably to have satisfied the said directors and the defendants. And that the said directors unreasonably and capriciously refused to be satisfied with the said evidence and information so fur.

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nished, applied and provided by the plaintiff as aforesaid ; and in thinking it necessary that the plaintiff should furnish, and in requiring the plaintiff to furnish, the said evidence or information in the said fourth plea mentioned they the said directors acted in an unreasonable and capricious manner.

To the fifth plea the plaintiff demurred, and the defendants demurred to the replication to the fourth plea.

Joinders in demurrer.

Horace Lloyd, for the plaintiff.—The fourth plea is bad. The directors are not empowered by the policy to exact from the assured any evidence they please. The clause requiring evidence satisfactory to the directors to be produced was meant as an instruction to the directors for their guidance between them and their shareholders. Besides, every clause in a deed should, if possible, receive a reasonable construction, and such as shall not be inconsistent with the general intention of the parties : “Expressum facit cessare tacitum.” This clause must therefore be understood to mean such evidence as the directors may reasonably require. In Dallman v. King (a), Tindal C. J., in delivering judgment, says, “ Admitting this clause of the agreement to constitute a condition precedent, the next question is, whether the condition has been substantially performed. The stipulation consists of two parts: first, that the work should be done in a substantial manner; secondly, that it should be done to the satisfaction of the lessor. The gist of the agreement is, that the work should be done in a substantial manner; the approval of the lessor was added, for the purpose of enabling him to ascertain

(a) 4 Bing. N. C. 105. 109.

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