Co. v. Boyden, 9 Allen (Mass.), 123; Kip v. Mut. Ins. Co., 4 Edw. Ch. (N. Y.) 86. In Sussex County Ins. Co. v. Woodruff, 26 N. J. 541, it was held that the insurer, who had paid the creditor, had a right to all his securities. In Benjamin v. Saratoga County Ins. Co., 17 N. Y. (3 Smith) 415, no subrogation was allowed. Where the vendee was to pay to the vendor the premiums, and the insurers knew of this agreement and assented, the insurer has only the same right the person has, to whose person he is subrogated. Alliance Ins. Co. v. Louisiana State Ins. Co., 8 La. (O. S.) 1. It is usual to insert a provision that the insured shall assign all claim which he may have against others, and in such case the insurer stands like a surety, and is discharged by any act of the insurer which renders an effectual assignment possible. Davis v. Quincy Ins. Co., 10 Allen (Mass.), 113..

ARTICLE IX.

LIMITATIONS AS TO ACTIONS; ARBITRAMENT.

Section 1. In general. The right to bring an action upon the policy may be limited in either of several ways. It is limited as to the time when it first accrues. The insured has no right of action until there has been some failure of performance on the part of the insurer. The insured must have performed all things which are imposed on him as his duty, before he can complain of any fault on the part of the other party. He must have complied with all conditions as to preliminary notices and proofs. The contract often farther provides that the loss shall not be payable for a certain specified time after the preliminary proofs are furnished. There is no breach till that time is passed. Harris v. Prot. Ins. Co., 1 Wright (Ohio), 548. If new proofs are substituted for others which were defective, the time is reckoned from the delivery of the new proofs. Kimball v. Hamilton Ins. Co., 8 Bosw. (N. Y.) 495. On the other hand, after the right of action has once accrued, it is subject to the ordinary provisions of the statute of limitations of personal actions, and in most States would have to be brought within six years from the day on which it accrued. It is, however, common in policies of insurance to provide that no action shall be commenced after some shorter period has elapsed, and that the lapse of this period shall be conclusive evidence against any claim asserted under it. The alleged object of this provision is protection against fraud. It is always important that matters of the nature of insurance should be investigated while the matter is fresh, and evidence can be obtained. It is also found that the nature of the contract is such that an immediate settle

ment is always expected and demanded by both parties, and it may be considered as contemplated by the contract. Any unusual delay in prosecuting the claim would always be ground for suspicion of its honesty, as unusual conduct always calls for explanation. It has accordingly been decided that such condition is valid and binding. Amesbury v. Bowditch Ins. Co., 6 Gray (Mass.), 596; Riddlesbarger v. Hartford Ins. Co., 7 Wall. (U. S.) 386; Brown v. Roger Williams Ins. Co., 7 R. I. 301; S. C., 1 id. 30; Merchants', etc., Ins. Co. v. La Croix, 45 Tex. 152; Wilson v. Etna Ins. Co., 27 Vt. 99; Peoria Ins. Co. v. Whitehall, 25 Ill. 466; Portage County Ins. Co. v. West, 6 Ohio St. 599; Carter v. Humboldt Ins. Co., 12 Iowa, 287; Ripley v. Etna Ins. Co., 29 Barb. (N. Y.) 552; 30 N. Y. (3 Tiff.) 136.

§ 2. Conditions as to actions. In Judkins v. Union Ins. Co., 39 N. H. 172, a provision in the policy that no execution should issue on a judgment recovered on the policy for three months after it was rendered, was enforced. In other States all provisions of the contract would be merged in the judgment. In case of reinsurance, payable within a limited time after the loss, the loss refers to the damage caused by the peril insured against, and not to the payment of that damage by the reinsured. Providence Ins. Co. v. Etna Ins. Co., 16 Up. Can. 135; Carraway v. Merchants' Ins .Co., 26 La. Ann. 298. In other cases the words "after loss or damage shall accrue," was held to mean after the right of action shall accrue. New York v. Hamilton Ins. Co., 39 N. Y. (12 Tiff.) 45; Black v. Winneshiek Ins. Co., 31 Wis. 74; Chandler v. St. Paul Ins. Co., 21 Minn. 85; 18 Am. Rep. 385. After the expiration of the time limited, a new promise will not revive any right of action. Williams v. Vermont Ins. Co., 20 Vt. 222. But it would seem that the time may be extended before its expiration by a modifica tion of the contract. If the period limited is unreasonably short, it may raise a presumption of fraud or imposition. Brown v. Savannah Ins. Co., 24 Ga. 97. Where the period has expired, the insured have attempted in various ways to avoid the bar. It has been held that it did not help them to prove that a previous suit had been commenced, which failed for some technical reason, or was nonsuited. Riddlesbarger v. Hartford Ins. Co., 7 Wall. (U. S.) 386; Brown v. Roger Williams Ins. Co., 7 R. I. 301; Wilson v. Etna Ins. Co., 27 Vt. 99. Ignorance of the condition is no excuse. Underwriters' Agency v. Sutherlin, 55 Ga. 266; DeGrove v. Metropolitan Ins. Co., 61 N. Y. (16 Sick.) 594; 19 Am. Rep. 305. But if the failure was caused by the fault or fraud of the insurer, he may be estopped to plead the provision. Ames v. N. Y. Union Ins. Co., 14 N. Y. 253; Andes Ins. Co. v. Fish, 71 Ill. 620; Derrick v. Lamar Ins. Co., 74 id. 404. Thus where he was

absent from the State at the time, and still more if he concealed himself, he could have no advantage from the clause. Peoria Ins. Co. v. Hall, 12 Mich. 202. In Ketchum v. Prot. Ins. Co., 1 Allen (N. B.), 136, the court were inclined to think absence alone not enough. Pending negotiations are not enough, unless the insured is misled (Coursin v. Penn. Ins. Co., 46 Penn. St. 323; Gooden v. Amoskeag Ins. Co., 20 N. H. 73; Mickey v. Burlington Ins. Co., 35 Iowa, 174; 14 Am. Rep. 494; Brady v. Western Ass. Co., 17 U. C. C. P. 597); nor that the insurers promised to write and inform the insured what they would do. McFarland v. Peabody Ins. Co., 6 W. Va. 425. Where war makes a suit within the limited time impossible, this condition is not suspended, but is rather made wholly ineffectual, and, on the return of peace, the insured has the usual time allowed other litigants in which to sue. Semmes v. City Ins. Co., 13 Wall. (U. S.) 158. Where, in the performance of the other conditions which are to precede payment, so much time is spent that the loss has not become payable at the end of the time allowed for suit, the provisions are inconsistent, and the latter becomes void. New York v. Hamilton Ins. Co., 10 Bosw. (N. Y.) 537; Stout v. City Ins. Co., 12 Iowa, 371; Longhurst v. Star Ins. Co., 19 Iowa, 364. In the two last cases the interest insured was a mechanic's lien, and it was necessary to determine its value by a judgment before adjustment. Collateral proceedings, like bills in equity to complete the issue of a policy, or to reform a policy (Perley v. Beacon Ins. Co., 7 Gran. [Can.] 130; Woodbury Bank v. Charter Oak Ins. Co., 31 Conn. 517); or scire facias by a creditor who has attached the sum due on trustee process (Harris v. Phænix Ins. Co., 35 Conn. 310); or a suit to enforce the liability of a stockholder (Davis v. Stewart, 26 Ohio St. 643), are not within this provision.

The condition is construed strictly. Thus, where it read "in case of disputed claims," the limitation shall apply, there must be evidence that there were disputes as to the payment. People v. Liverpool Ins. Co., 2 N. Y. Sup. (T. & C.) 268. If it appears that adjustment is to precede suit, the limitation only applies where there has been an adjustment. Nevins v. Rockingham Ins. Co., 25 N. H. 22; Landis v. Home Ins. Co., 56 Mo. 591; Arnet v. Mechanics' Ins. Co., 22 Wis. 516; contra, Dutton v. Vermont Ins. Co., 17 Vt. 369. The issuing of the writ, not its service, is the beginning of the action. Peoria Ins. Co. v. Hall, 12 Mich. 202. As we have said, the condition may be waived, and being a harsh one, a waiver will be easily presumed. The waiver is usually a question for the jury. Ripley v. Ætna Ins. Co., 29 Barb. (N. Y.) 552; Coursin v. Penn. Ins. Co., 46 Penn. St. 323; Columbian Ins. Co. v. Lawrence, 2 Pet. (U.S.) 25; Graves v. Washington Ins. Co., 12 Allen (Mass.), 391.

But mere silence is no waiver, as there is no duty on the insurers to speak (Schroeder v. Keystone Ins. Co., 2 Phila. 286); though it may be evidence (Ripley v. Etna Ins. Co., 29 Barb. [N. Y.] 552); nor are conversations about a settlement or an absolute refusal to pay on other grounds, as the insured could not be misled thereby. Lambkin v. Western Ass. Co., 13 Up. Can. 361. But acts of the insurer performed with the intention of inducing the insured to delay, under a belief that his rights were safe, and which had that effect, are an estoppel. Mickey v. Burlington Ins. Co., 35 Iowa, 174; 14 Am. Rep. 494; Grant v. Lexington Ins. Co., 5 Ind. 23; Fullam v. N. Y. Union Ins. Co., 7 Gray (Mass.), 61; Black v. Winneshiek Ins. Co., 31 Wis. 74; Curtis v. Home Ins. Co., 1 Biss. (C. C.) 485; Derrick v. Lamar Ins. Co., 74 Ill. 404. Suit means any legal proceeding to recover the loss. Thus, a proceeding by foreign attachment by a creditor is a compliance with the condition. Harris v. Phonix Ins. Co., 35 Conn. 310. But the creditor in such case must rest on the strength of the claim of the insured. Id. A limitation of the venue of any action upon the policy is invalid. The parties have no power to limit the jurisdiction of courts. Nute v. Hamilton Ins. Co., 6 Gray (Mass.), 174; Richard v. Manhattan Ins. Co., 31 Mo. 518. If the charter fixes the venue, it may be changed by the legislature. Howard v. Kentucky Ins. Co., 13 B. Monr. (Ky.) 282; Sanders v. Hillsborough Ins. Co., 44 N. H. 238. Where the charter provides that the directors of the insurance company shall proceed to determine the amount, and if the insured shall be dissatisfied, he may proceed in a particular court, he is not confined to that court, if the directors do not determine the amount, but refuse absolutely to pay. Martin v. Penob scot Ins. Co., 53 Me. 419; Boynton v. Middlesex Ins. Co., 4 Metc. (Mass.) 212; contra, Dutton v. Vermont Ins. Co., 17 Vt. 369.

§ 3. Condition as to arbitration. A provision for a compulsory arbitration of all matters in dispute will not be enforced. Thompson v. Charnock, 8 T. R. 139; Goldstone v. Osborn, 2 C. & P. 550; Scott v. Avery, 5 H. L. C. 811; Trott v. City Ins. Co., 1 Cliff. (C. C.) 439; Stephenson v. Piscataqua Ins. Co., 54 Me. 55; Liverpool Ins. Co. v. Creighton, 51 Ga. 95. If the parties, however, proceed under such agreement it will bind them. Roper v. Lendon, 1 El. & El. 825; Kill v. Hollister, 1 Wils. 129; Richardson v. Suffolk Ins. Co., 3 Metc. (Mass.) 573. An agreement to refer a special matter, such as the amount of loss, the time of payment, and other like questions, is valid. Braunstein v. Accidental Death Ins. Co., 1 B. & S. 782; Trott v. City Ins. Co., 1 Cliff. (C. C.) 439. If the act of incorporation provided for arbitration, the court would be bound. Crisp v. Bunbury, 8 Bing. 394; Ex parte Payne, 5 D. & L. P. C. 679. Where the VOL. IV-12

policy provided that "in case any difference shall arise touching any, loss or damage, such difference shall be submitted to arbitrators, whose award shall be final," it was sustained. Elliott v. Royal Exchange Ins. Co., 2 L. R. Exch. 237. So where it was provided that the payment of the loss was to be on condition that in the opinion of the surgeongeneral the insured did not die from intemperance. Campbell v. American Popular Ins. Co., 4 L. T. (N. S.) 6. Where the policy provided that in case of forfeiture the insured should have the benefit of such equitable adjustment as the directors should from time to time provide, it was discretionary with the directors to act in the matter of establishing any mode of adjustment, although, when once established, they might not have power to change it to the injury of existing policies. Nightingale v. State Ins. Co., 5 R. I. 38. While such previous agreement for a reference may be voidable, yet the parties have power, after the controversy has arisen, to agree upon an arbitration, which agreement will bind them, and of course, they can equally ratify the previous agreement. If, then, it appears that they have, after the controversy, treated the agreement to refer as binding, as for instance, by going on with a hearing under it, it will be a ratification, and they will be bound. Roper v. Lendon, 1 El. & El. 825; Burchell v. Marsh, 17 How. (U. S.) 344; Kill v. Hollister, 1 Wils. 129; Richardson v. Suffolk Ins. Co., 3 Metc. (Mass.) 573. A refusal to pay without any offer to refer is a waiver of the provision. Robinson v. Georges Ins. Co., 17 Me. 131; Millaudon v. Atlantic Ins. Co., 8 La. (O. S.) 558.

TITLE II.

OF LIFE INSURANCE.

ARTICLE I.

OF LIFE INSURANCE IN GENERAL.

Section 1. In general. It is said that the contract commonly called life insurance, when properly considered, is a mere contract to pay a certain sum of money on the death of a person, in consideration of the due payment of a certain annuity for his life, or some shorter period, by him, the annuity being calculated according to his probable chance of longevity, and that this contract in no way resembles a contract of indemnity, and in this respect differs from both fire and marine