his native place, the seat of his ancestors, and the home of his brothers and sisters, and family connections; and still further when it was to enter upon the perilous employment of a seafaring life, and when he has not been heard of, by those who would be most likely to know of him, for upwards of thirty years. All these circumstances concur in the present case, and the court are all of opinion that they go fully to establish the fact of the death."1

1 See Smith v. Knowlton, 11 N. Hamp. R. 191; Doe v. Nepean, 5 Adol. & Ell. R. 86. It has been enacted by statute in the State of New York, that, "If any person upon whose life any estate in lands or tenements shall depend, shall remain beyond sea, or shall absent himself in this State or elsewhere, for seven years together, such person shall be accounted naturally dead, in any action concerning such lands or tenements in which his death shall come in question, unless sufficient proof be made, in such case, of the life of such person. 2 New York Rev. Stat. 34, § 6. But the only presumption arising from such a protracted absence is, that the absentee is dead, if he has not been heard from within the seven years; not that he died at any particular time within the seven years, or even on the last day of that term. But where a person, whose existence is in question, has remained beyond sea for seven years, if he had a house and fixed place of residence in a foreign country when he was last heard from, he ought not to be presumed to be dead, without some evidence of inquiries having been made for him at such known place of residence, and without success. McCarter v. Camel, 1 Barb. (N. Y.) Ch. R. 455. It was held in this case, that where one of the next of kin of the decedent, and who was entitled to a distributive share of his estate, left her domicile of origin in the city of New York, and went to reside at a place near the city of Baltimore, and continued to correspond with her mother and sisters in the city of New York, but had not answered their letters for about twelve years previous to the death of the defendant, and there was nothing else to raise a legal presumption of her death; it was held, that the administrator of the decedent was not authorized to pay the share of the estate belonging to the absentee to her sisters, without making inquiries at the last known place of residence of the absentee, to ascertain whether she was living or dead. The English rule, that in the case of an absent person of whom no tidings are received, the presumption of the continuance of life ceases at the end of seven years, is adopted in the State of Pennsylvania; but the presumption of death, as a limitation of the presumption of life, must be taken to run exclusively from the termination

§ 352. If a married woman procures a policy of insurance upon the life of her husband, in her own name, and for her sole use, (as authorized by an act of the legislature,) the insurance money being made payable to her children in case she should die before her husband, and subsequently both husband and wife and their only child perished at sea, by the same disaster, and probably at the same moment; the act of the legislature does not extend to the case; and the insurance contract stands upon the same footing as any other contract made by a feme covert in her own name, in the lifetime of her husband, and without the intervention of a trustee. There being no evidence of survivorship, there is no legal presumption that the daughter survived the mother.1

of the prescribed period; so that the jury are bound to presume that the person lived throughout the whole of that period, unless there are circumstances in evidence to quicken the time; and the circumstances which are sufficient to take a case out of the operation of the rule, must be such as show that the individual was at some particular date in contact with a specific peril. Burr v. Sim, 4 Whart. (Penn.) R. 150; Bradley v. Bradley, Ibid. 173. The same in Georgia, Doe v. Flanagan, 1 Kelly, (Ga.) R. 538, and in Maryland, Tilly v. Tilly, 2 Bland, (Md.) Ch. R. 445.

1 Moehring v. Mitchell, 1 Barb. (N. Y.) Ch. R. 264. It seems that where husband and wife perish together at sea, and where there is no evidence to authorize a different conclusion, it will be presumed that the husband survived the wife. Ibid. This point, though raised, was not disposed of. The question first arose in the common-law courts, in a motion for a mandamus, in the case of General Stanwix, (Rex v. Dr. Hay, 1 W. Bl. R. 640,) but the point was not decided, (1 Greenl. Evid. § 30.) Afterwards in Chancery, when the Master of the Rolls refused to decide the question by presumption, and directed an issue, to try the fact by a jury. (Ibid. citing Mason v. Mason, 1 Merivale, Ch. R. 308.) Professor Greenleaf is of opinion that, “In the absence of all evidence of the particular circumstances of the calamity, probably this rule [the presumption that both perished together] will be found the safest and most convenient," and he cites Coye v. Leach, 8 Metc. (Mass.) R. 371. The learned Professor adds,- "But if any circumstances of the death of either party can be proved, there can be no inconvenience in submitting the question to a jury, to whose province it peculiarly belongs." 1 Greenl. Evid. § 30.

FIRE AND LIFE INSURANCE.

CHAPTER XVIII.

OF THE PROCEEDINGS AT LAW ON POLICIES OF FIRE AND LIFE INSURANCE.

§ 353. WHAT are the general principles of legal proceeding on policies against fire, are applicable to those on policies against lives. The same principles, course of proceeding, and rules of evidence, says Professor Greenleaf,2 are applicable to policies upon lives as in policies on other subjects. In regard to the arrangement of the work of Beaumont on Fire and Life Insurance, that author says, that he "found it impossible to give separate chapters for Life and Fire Insurance, the principles being generally applicable to both, and the cases fixing those principles not only being wanting in one or the other, but being likely so to remain." 3

§ 354. The deeds of settlement of most of the insurance companies in England contain a clause enabling the parties to refer matters in dispute to ARBITRATION. But in whatever form this clause is put, it will not take away the juris

1 Ellis on Fire and Life Ins. 161.

2 2 Greenl. Evid. § 409.

3 Preface to Beaumont on Fire and Life Ins. p. viii.

4 Ellis on Fire and Life Ins. 89; Beaumont on Fire and Life Ins. 91; Richardson v. Suffolk Ins. Co. 3 Metc. (Mass.) R. 573.

diction of the ordinary courts of law in the matter; and without it the parties may, if they mutually consent so to do; refer to arbitration.1 If they do not so consent, the authority of the courts of law rides over every thing but the express words of an act of the legislature in abridgment of judicial cognizance. Even a covenant between the parties to refer matters in dispute, will not oust the courts of their jurisdiction, and cannot be pleaded in bar to an action.3 If an award be actually made, it will be a bar to an action; or if the parties have submitted their differences to arbitration, and the reference be still pending, it would also appear to be a bar.1

§ 354 a. To an action by the plaintiff against the defendant as one of the underwriters, to recover from him compensation for the loss of a vessel, the defendant pleaded one of the rules of the company, which provided, that the sum to

1 Ibid. 2 Phil. on Ins. p. 599, § 1990, who refers to Robinson v. Georges Ins. Co. 17 Maine R. 131. According to Phillips, (2 Phil. on Ins. p. 579, § 1941,) "Marine policies usually contain an agreement to settle all disputes by arbitration; or, in other words, that they will mutually constitute a committee that shall have jurisdiction of the policy; and he is not aware of any reported decree or judgment enforcing this stipulation."

22 Marsh. on Ins. 84; Kill v. Hollister, Wils. R. 120; 2 Story, Eq. Jurisp. § 1450, 1457; 1 Phil. on Ins. p. 37, § 58.

3 Hammond on Fire Ins. 112, citing Thompson v. Charnock, 8 T. R. 139. It has been stated, in reference to the objection of setting up an agreement for the submission of a dispute to arbitration, that "associations might, upon the same principles, be formed, with agreements to have all questions of the civil rights and obligations of the members among themselves, settled independently of the public legal tribunals and the general laws, which would be thus far an imperium in imperio." 1 Phil. on Ins. p. 37, § 58, note 3. And see Kyd on Awards, 14; Street v. Rigby, 8 Ves. R. 815; Wellington v. M'Intosh, 2 Atk. R. 569; Tattersall v. Groote, 2 Bos. & Pull. R. 131; Goldstone v. Osborne, C. & Payne R. 551; Gray v. Hartford Fire Ins. Co. 1 Blatch. (Cir. Ct.) R. 280.

4 Ellis on Fire and Life Ins. 89, citing Kill v. Hollister, 1 Wils. R. 19; Beaumont on Fire and Life Ins. 91.

be paid by the company for any loss, should, in the first instance, be ascertained and settled by the committee; and alleged, that before action brought, the committee ascertained and settled the sum to be paid to the plaintiff; that the plaintiff was dissatisfied with the settlement; and that the defendant and the committee had always been ready and willing to refer the said matters in difference, relating to the insurance, to arbitration, according to the intention of the rule, but that the plaintiff was not willing and ready. It was held, that the rule relied upon was void, as an attempt to oust the superior courts of their jurisdiction; and, therefore, the plea was void. But Baron Alderson said, that the contract might easily have been framed in such a manner as to confine the decision of the committee solely to the amount of the loss, by plainly stating, that at the trial of any action, it shall not be lawful for either party to enter into the question of the amount of the loss, but that it shall always be settled by the committee, or by other referees; and that the only question to be tried at law, shall be the right to recover.1

§ 355. The legal remedy is AssUMPSIT, provided the policy be not under seal, or DEBT or COVENANT, if under seal.2 As in the action by the assured, it is founded on a particular and express undertaking made upon a consideration, upon which the law would not, by necessary implication, raise the promise specified in the policy, the plaintiff must declare specially upon it. The declaration sets forth, 1st. The policy; 2d. The defendant's subscription to the policy; 3d. The

1 Scott v. Avery, 22 Law Jour. R. (N. s.) 157; Exch. S. C. in 20 Eng. Law & Eq. R. 327.

2 Beaumont on Fire and Life Ins., Part III., p. 91, et seq.; Ellis on Fire and Life Ins. 89, et seq.; Hammond on Fire Ins. 112, et seq.; and see ante, Introd. § 12, et seq.; and ante, Treat. § 14.

3 Ellis, &c. ubi sup.