surance in the policy is a written assent to it (Baptist Soc. v. Hillsborough Ins. Co., 19 N. H. 580), but not to the same insurance in other companies. Conway Tool Co. v. Hudson River Ins. Co., 12 Cush. (Mass.) 144. Assent to other insurance includes leave to keep it alive by renewals or new policies. Brown v. Cattaraugus County Ins. Co., 18 N. Y. (4 Smith) 385. Where the amount was increased and a new policy in another company taken, new assent was required. Burt v. People's Ins. Co., 2 Gray (Mass.), 397; Shurtleff v. Phoenix Ins. Co., 57 Me. 137. Where insurance to two-thirds the estimated value is allowed, an increase in the value of the property does not authorize more insurance. Elliott v. Lycoming Ins. Co., 66 Penn. St. 22; 5 Am. Rep. 323. Where the amount was reduced within the limit before loss, a recovery was allowed. Obermeyer v. Globe Ins. Co., 43 Mo. 573. Where notice of changes is required, it must be given of a different subdivision of the sum insured in a renewal. Simpson v. Penn. Ins. Co., 38 Penn. St. 250. If the company in any way recognize the policy as valid after knowledge of a breach, it is a ratification. Barnes v. Union Ins. Co., 45 N. H. 21. Where there is only a right to avoid the policy, the insurers must take advantage of the breach within a reasonable time. Van Bories v. United Ins. Co., 8 Bush (Ky.), 133.

§ 8. Assigning the policy. With reference to assignments of the policy, as we have seen, they can be only made to some person who has an interest in the matter insured. Next, there is here a distinction between policies of marine insurance, and policies of insurance against fire. The former are transferable without the consent of the insurer. The latter cannot be transferred, so that the assignee will have any right to enforce them in his own name without a new contract with the insurers. Etna Ins. Co. v. Taylor, 16 Wend. (N. Y.) 385; Columbian Ins. Co. v. Lawrence, 2 Pet. (U. S.) 25; Lynch v. Dalzell, 4 Brown's P. C. 431; Simeral v. Dubuque Ins. Co., 18 Iowa, 319. An assignment may be of the contract, in which case the assignee must have an interest in the subject-matter, or it may be a mere order to pay the sum insured to some person, if any loss occurs, in which case the assignor remains the insurer and the assignment is only a collateral contract. Hogg v. Middlesex Ins. Co., 10 Cush. (Mass.) 337. As most policies contain a provision making the contract void in case of assignment, it is important to consider what is an assignment within this clause. An alienation of the property is not alone an assignment. Phillips v. Merrimack Ins. Co., 10 Cush. (Mass.) 350; Stout v. City Ins. Co., 12 Iowa, 371. Even with an agreement to assign the policy (Wheeling Ins. Co. v. Morrison, 11 Leigh [Va.], 354; Pierce v. Nashua Ins. Co., 50 N.

H. 297; 9 Am. Rep. 235); nor a mortgage with an agreement to hold the policy for the benefit of the mortgagee (Prows v. Ohio Valley Ins. Co., 2 Cin. [Ohio] 14); nor an unexecuted agreement to assign, whether parol or written (Cromwell v. Brooklyn Ins. Co., 39 Barb. [N. Y.] 227; Smith v. Monmouth Ins. Co., 50 Me. 96); nor a pledge of the policy (Ellis v. Kreutzinger, 27 Mo. 311); nor a general assignment for the benefit of creditors (People v. Beigler, 1 Hill & Den. [N. Y.] 133; Lazarus v. Com. Ins. Co., 5 Pick. [Mass.] 76); nor a direction to pay some third party as mortgagee; nor an indorsement signed by the insured, "Pay to A," and delivery. Russ v. Waldo Ins. Co., 52 Me. 187. The mortgagee, or person to whom the policy is payable, only gains an equitable right to receive any sum which may be due after a loss. Brown v. Hartford Ins. Co., 5 R. I. 394. As soon, however, as the loss has occurred, he becomes the party in interest, and the insurer in settling the loss must deal with him, and not with the insured. State Ins. Co. v. Roberts, 31 Penn. St. 438; Edes v. Hamilton Ins. Co., 3 Allen (Mass.), 362; Buffalo Works v. Sun Ins. Co., 17 N. Y. (3 Smith) 401; Pupke v. Resolute Ins. Co., 17 Wis. 378; Hoxsie v. Providence Ins. Co., 6 R. I. 517 An assignment after loss is not within the prohibition (Courtney v. New York City Ins. Co., 28 Barb. [N. Y.] 116; Carter v. Humboldt Ins. Co., 12 Iowa, 287), and any provision forbidding it is against public policy and void. West Branch Ins. Co. v. Helfenstein, 40 Penn. St. 289. Unless the policy in terms forbids a partial transfer, no assignment which does not deprive the assignor of all interest in the property will avoid the policy. Shearman v. Niagara Ins. Co., 2 Sweeny (N. Y.), 470; Hitchcock v. N. W. Ins. Co., 26 N. Y. (12 Smith) 68. Where there was a provision that assent should be given to an assignment upon notice, there being also a provision against sale, no assent can be required unless the sale also has been assented to. Home Ins. Co. v. Lindsey, 26 Ohio St. 348. After the assurers have assented to an assignment, it becomes a new contract, which the assignee may enforce in his own name (Buckley v. Garrett, 47 Penn. St. 204; Wolfe v. Security Ins. Co., 39 N. Y. [12 Tiff.] 49), and the acts of the assignor cannot affect it. Boynton v. Clinton Ins. Co., 16 Barb. (N. Y.) 254. The assent may be given by the secretary of an insurance company if there is no express provision making it the duty of any other officer, even though the president is required to sign all policies. N. E. Ins. Co. v. De Wolf, 8 Pick. (Mass.) 56. Where the assent of the directors is required, it will be presumed, if the secretary has assented, and entered the transaction on the books, and no objection has been made by them, no formal vote is necessary. Durar v. Hudson County Ins. Co., 24 N. J. L. 171. The habit of the officers

known to them is sufficient. Phillips v. Merrimack Ins. Co., 10 Cush. (Mass.) 350. Even an agent may keep the policy good till the insurer can act upon it. Ill. Ins. Co. v. Stanton, 57 Ill. 354. Where it appears on the policy that the insurer has acted on the assignment, as where the assignee is made payee, it is enough. National Ins. Co. v. Crane, 16 Md. 260; Keeler v. Niagara Ins. Co., 16 Wis. 523; Brown v. Roger Williams Ins. Co., 5 R. I. 394; Franklin v. National Ins. Co., 43 Mo. 491. Changes in a partnership firm have been held not to come within the rule as to assignments. Wilson v. Genesee Couny Ins. Co., 16 Barb. (N. Y.) 511. But see, contra, Tillou v. Kingston Mutual Ins. Co., 5 N. Y. (1 Seld.) 405. Where the policy was originally void, an assent to an assignment does not make it good. The assignee is no better off than the assignor. Eastman v. Carroll County Ins. Co., 45 Me. 307; Citizens' Ins. Co. v. Doll, 35 Md. 89; 6 Am. Rep. 360. But where the policy is only voidable, it might, with other circumstances showing that it was done knowingly, be evidence of a ratification. Barnes v. Union Ins. Co., 45 N. H. 21. The assent may be conditional, and in such case the condition must be performed strictly. Smith v. Saratoga Ins. Co., 3 Hill (N. Y.), 508. Where the assignee has thirty days in which to secure the assent of the company, they cannot refuse it without cause. Boynton v. Farmers' Ins. Co., 43 Vt. 256; 5 Am. Rep. 276. Consent to a sale and assignment, given afterward, is enough. Buchanan v. Exchange Ins. Co, 61 N. Y. (16 Sick.) 26. A parol assignment, with a delivery of the policy, is good between the parties. Bibend v. London Ins. Co., 30 Cal. 78. After a loss, an order is a valid assignment. Hall v. Dorchester Ins. Co., 111 Mass. 53; 15 Am. Rep. 1; Lapeyre v. Thompson, 7 La. Ann. 218. Possession of the policy is prima facie evidence of title to it. Wood v. Phoenix Ins. Co., 22 La. Ann. 617. But delivery is not always essential. The court may rely upon other circumstances. Palmer v. Merrill, 6 Cush. (Mass.) 282; In re Styan, 1 Phil. Ch. 105; Neale v. Molineux, 2 C. & K. 672. Even as against one who has advanced money on the policy without notice. Id. A letter, expressing a wish to assign, received by the insurers and entered on their books, was held a good assignment against a subsequent assignee, who had possession of the policy. Chowne v. Baylis, 31 Beav. 351. A mere notice entered on the insurer's books to send letters about the policy to a third person is not evidence of an assignment valid in bankruptcy. West v. Reid, 2 Hare, 249. A deposit of the policy with a letter promising to assign was held a good assignment without notice to the insurer. Cook v. Black, 1 Hare, 390; Jones v. Cons. Ins. Co., 26 Beav. 256. So of even a bare deposit of the policy (Moore v. Woolsey, 4 El. & Bl. 243),

and the words in the policy, "legally assigned," add nothing and mean only lawfully assigned. Dufaur v. Prof. Ass. Co., 25 Beav. 603. No notice to the insurers is necessary unless required by the policy. Mut. Prot. Ins. Co. v. Hamilton, 5 Sneed (Tenn.), 269. Where notice is required, it may, in the absence of other provision, be oral (North British Ins. Co. v. Hallett, 7 Jur. [N. S.] 1263; Gale v. Lewis, 9 Q. B. 742) to an agent (Id.), in any form of words. Ex parte Staght, 2 Dra. & Chit. 314. A mere incidental mention, to one especially who was only a clerk, has been held not enough. Edwards v. Scott, 2 Scott, 266; 1 M. & G. 962; Edwards v. Martin, L. R., 1 Eq. 121; North British Ins. Co. v. Hallett, 7 Jur. (N. S.) 1263. An assignment of part only cannot be enforced. May on Ins., § 399.

§ 9. Reinsurance. Reinsurance is a contract wholly collateral to the original insurance. Herckenrath v. American Ins. Co., 3 Barb. (N. Y.) Ch. 63. The insured is no party to it, and it does not in any way increase or decrease his rights. If the insurer is insolvent, while the reinsurer is able, and does pay the loss, it does the insured no good. Hone v. Mutual Safety Ins. Co., 1 Sandf. (N. Y.) 137. See Blackstone v. Allemania Ins. Co., 4 Daly, 299; 56 N. Y. (11 Sick.) 104. It is a relation with which only the insurer and reinsurer have any concern. It is evident that all the benefits resulting from it would be equally obtained, in most, or all cases, if the insured made the contract originally with the reinsurer. Reinsurance is prohibited in England. Andree v. Fletcher, 2 T. R. 161. In the ordinary contract of reinsurance, the reinsurer undertakes with reference to the insurer, what he undertakes with reference to the insured, and subject to like rights, duties and obligations. The first condition of the contract is, that there shall be a valid original contract of insurance. If the insurer is not bound, he has no interest in the loss, and without such interest the reinsurance must be void. Carpenter v. Providence Ins. Co., 16 Pet. (U. S.) 495. The reinsurer may, therefore, defend by proving that the original reinsurance was void. It would even seem that he may claim that the insurer shall avoid it where it is voidable. N. Y. Ins. Co. v. Prot. Ins. Co., 1 Story (C. C.), 458; Eagle Ins. Co. v. Lafayette Ins. Co., 9 Ind. 443. The reinsured must prove the policy, the loss, and all the steps which are necessary to make out a complete legal liability from himself to the insured, in the same manner that the insured himself must have done. 3 Kent's Com. 279. But he need not prove either that he has paid, or can pay, or even that he intends to pay the loss to the insured. Hone v. Mutual Safety Ins. Co., 1 Sandf. (N. Y.) 137; Blackstone v. Alemannia Ins. Co., 56 N. Y. 104; Fame Ins. Co.'s Appeal, 83 Penn. St. 396. If the reinsurance is for a part only of the

sum originally insured, and the loss is a partial one, yet the reinsurer must pay the whole, and cannot prove a usage to pay only a proportionate part, unless there is a provision that the loss shall be payable pro rata. Id. Where the loss was payable pro rata, at the same time and in the same manner as by the reinsured, the reinsurer was only held for such sum as the reinsured actually paid. Illinois Ins. Co. v. Andes Ins. Co., 67 Ill. 362; 16 Am. Rep. 620. If the insurer resists the claim in good faith, the reinsurer will be liable to him for the costs and expenses after notice. N. Y. State Ins. Co. v. Prot. Ins. Co., 1 Story (C. C.) 458; Hastie v. De Peyster, 3 Cai. (N. Y.) 190. The same obligations of good faith exist between the insurer and the reinsurer as between the original parties, and the insurer must communicate all material facts within his knowledge, or the policy will be void. Bowery Ins. Co. v. N. Y. Ins. Co., 17 Wend. (N. Y.) 359. In a policy of reinsurance any provision as to other insurance means other insurance of a like kind, that is, reinsurance. Mut. Safety Ins. Co. v. Hone, 2 N. Y. 235.

ARTICLE VII.

THE RISK, ITS DURATION AND EXTENT.

Section 1. In general. In ordinary cases, the risk insured against is uncertain as to the time when it may occur, as well as in reference to its occurring at all. The insurance of a crop against failure, for instance, would have reference to the time of harvest, a fixed event, while in ordinary fire and life insurance, there is no time to which the risk can particularly be referred. In marine insurance, the insurance may be for a particular voyage. In accident insurance, for a certain journey. In most cases then, it is an essential part of the contract that there shall be some certain period limited, during which the loss must occur in order to be covered by the contract. Strohn v. Hartford Ins. Co., 37 Wis. 625; 19 Am. Rep. 777. This period may either be definitely stated in the contract, or its term may be fixed by reference to external matters. This term may relate back or not begin till a future date. The ordinary presumption, in the absence of any express provision, is that it begins at the date of the policy, although the policy may be actually delivered after the date. Lightbody v. N. A. Ins. Co., 23 Wend. (N. Y.) 18. If there is a provision that it shall not take effect till a premium is paid or some other condition is complied with, when the requirement is performed or waived, the risk relates back to the date. Ruse v. Mutual Benefit Ins. Co., 23 N. Y. (9 Smith) 516; VOL. IV.-9