, 1873-02-12


.ny s9it or aSon bo nm aEainst IT. Company
sais ssasss sasy Of
These, clauses, With como e!ight notifications Of
Ii ba s1ss are essen %
contract have bcen frequently by the Conra
Tho ninth clause imposes condition precedent to
may may waivo tho performance of Ills eondIaon, and
Courts hayc decided what acts amounted
to waiver in those caRca. but the principle ia well
onea s o asa , S 9y s
surod az prerequisite to Ills right Of action on tho
policy. The questions now submitted 10 tho Court
i. ought tho Assignee to allow and pay claim for
loss arising under policy where no proof Of loss as
M or o any proof q made
heforo the Assignee, or suit commenced in the pro-
sesdings In bankruptcy within twelve months aftertho
.. Ought tho Assignee to allow md pay claim for
loas arising under policy where the assured haa fr
to tho Assignee afterwards TIC proofs Of loss required
by tho ninth causo Of tho policy but has not proved
his CHIN IN bankruptcy or commenced suit within
.. ought the assignee to pay such CLAIM whore no
proofs q loss have been furnished either to the Com
rules within twelve months after tne ioaa occurred
Of tho policy remain binding upon the assured to tho
sana extent whoshor tho Company Is ad1udcaed bank
5 as t. ss ss e ss y r. hs soS
Tho ninth clause was undoubtedly adopted by tho
assured to furnish tho Company with all tho facts and
details IN regarl to tho nature and extent
Ct Ct Ill s Ss' sna .ssn9 f d. ss
to indemnity, and tho Assignee IN bankrnptcy M who
must 10 supposed to 10 an entire to tho trans
Actiou to tho ti{1p OF his appointment, must Cer
tainly need tic information calud for by this clause
ana ps d. s h s sadi
to noT se'anag about the nnre patti Of hs 1sk aqd
s ee 'i e
cy require, and bring himself within the terms Of his
wuivo this proof, but nm very olear TINT As
signeo can makc no such waiver. Els duty requires
saled @ rst furnishes G - al tho proofs and submits
On request to an examination provided for IN
M n' Ras sbt u Is
which tho assumed il bound 10 perform in order to
furnished, and losses adjusted boforo adjudication,
espeeial'yf such adjustment WAS naaa nftcr tho In
ef ,he befoIs tha Court Il w World undoab
edy 10 the right md duty of tho Assignee to caane III 1
snd Ts % es and o. eaaT Sna aaa aos
Or thero any evidence Of tho ack OF ontire good
faith in thu adjustment.
Courts 5a1tt os a. limitation oi tho Right of action
sgainst tho baalrupt after tho adjudication. except
court for tho purpose Of determining the amount duo
cln!m for unllQuldatcl damagcs proof Of debt
under tho rules in bankruptcy must cquiya-
aud meaning Of tho twelfth elause, and II tile Com
pany lis in bankruptcy q failure o. neglect to mako
the lime ioss accrued, bars tic claim Us elcctuay -
would bo failure to sue If tho Company were not In
do not intend now to determine the effect Of bring
lug auit against the Company atter adjudication az
saving act against tue limitation Of the twelfth clauso
~ et&ch caaes aro probably not numerous, and may
rest on facts peculiar to themselves
From what hnve already said, 1t Ia clear that o
As to tho sccond proposition, where proofs or loas
hnvo been furnished either before adjudication to the
IN ns o 4 ths
aasurcd ha. Furnished hls proof Of oas and his loss
bus been adjusted thu amount determ!ae4 and agreed
was In The management 81 s affairs, suit at lA
for balsnco struck settlement. Tho parties hayo
aHrecd upon tho amount due under the policy whtlo
and suit may be maintained such agreement any
time within tue statutory limitation. And nm Of
opinion that il the loss haa been duly and regularity
Gated bankrupt, tho claim can bo proven Ike any
other debit without regard to Tho year-cauae Of tho
VI
sctea upon unt.t after tho petition is fled In banl;-
rupscy think that, wl!le the Assignee may examine
and pass upon such proofs for certain purposes, ho
which an action could be maintained, mud the assured,
tn order to preacrve hia claim, must not only prcscnt
btu proofs under the ninth claso but must niao make
his proof for tho commencement Of suit within twelve
months under the twelfth clause. The principle on
which holl that adjustment Of tho loBs by tLo
Company ia waiver ct the main c!ansc is that tho
law WV Imply psomise BY the Company q pay the
arising out OF the old ono but ths principle does not
apply to tho Assignee q 10 has no right to make an
ply one against him from what he 1nay lo + there
forc, think that whom tho assured laa furnished lila
proofs Of loss to tho Aaagnco but has acd to follow
claim Is oari,' by tho year-clauao. ~ "A'''' A'
AS 70 eo thrd proposition whero no proofs Of loss
have been Furnished to tho Company or Asagueo, but
tSo assnrca q has proven up Ills losa ag eGt against
rupt Court This caso IL similar ia prIncple to tho
bringing Of suit against tho Company for loss on
policy without compliance with the ninth clause
CLAUSE, az. cannot afterwards insist upon ach proof
~ condition ',atS to bringing
preliminary proof shown IN tho proof Of dobt think
tho debt should be allowed subject to the rght Of ho
Assignee to have inquiry made Into oil ho facts touch
ing such alleged waiver or to illustrate my meaning
r. suit Ia brought Oh policy the plaintiff must aver
aid provo That DO has given notice and proof Of loss
~ required by tho ninth clause. and md prove
Wa1ver Of such notice Rnu proofs. When he allustl-
tutes proof Of c'am in bankruptcy tor such auit. he
muat show eshor compliance NTH Tho ninth clause or
wsyes tss snd ~ = the TsisSF IL sy and
regularly made IN good fulfil, ,tho Aasignee ahod nayho
policy But Il there ta no eyidonco Of walYor by lilo
Company while II bad tue right to make auch waiyor,
to pay tho caim, unless tho assured aows that he has
compiled with the prerequisites Of thu ninth claugo
sn4 lhs allegations Of hs assured in mt regard may