When Not Sufficient.

by the fire. Roumage v. Mechanics' Fire Ins. Co., 1 Green, 110 (N. J.)

have sustained, by such fire, loss and fying as to the amount, solely upon the damage to the amount therein men-ground of not having any such knowledge tioned," and where the certificate of the of the amount of property consumed as to magistrate was, that he was acquainted justify him in making any such certifiwith the insured, and had examined the cate; held, not to be a compliance on the circumstances attending the fire, and was part of assured with a condition in the satisfied and did verily believe that the policy requiring a certificate of the insured, by misfortune, and without amount of the loss or damage sustained fraud or evil practice, sustained damage or loss by said fire to the amount of the buildings mentioned in the proofs, but did not state that he was acquainted with the character and circumstances of the insured, and did not state the amount of loss and damage sustained; held, that though not in precise language of the condition, yet it was a sufficient compliance. Etna Fire Ins. Co. v. Tyler, 16 Wend. 385 (N. Y.)

12. Where two nearest magistrates refused the certificate, and that of the next nearest was obtained; held, that a condition of the policy, requiring a certificate from the magistrate most contiguous to the fire, was not complied with, and the insurance not recoverable. Leadbetter v. Etna Ins. Co., 13 Me. 265.

13. Where policy required, among other things in event of loss, the certificate of a magistrate most contiguous to the fire, &c., and the assured obtained the certificate of a magistrate fourteen miles

9.- Where policy was issued to K., and made payable to W., and provided that in case of loss, the insured should deliver to the insurer a particular account, &c., of such loss, and that he should pro-distant from the fire, when other magiscure a certificate under the hand and seal of a magistrate or notary public (most contiguous to the place of fire, and not concerned in the loss as a creditor, or otherwise related to the assured); held, that as it did not appear that W. had any legal interest, it was not necessary to state that he was not related to the notary. Ketchum v. Protection Ins. Co., 1 Allen, 136 (N. B.)

10. Where the justice granting the certificate, certified therein that he was not interested in the loss, and a witness testified that the justice lived nearer the insured premises, as he thought, than another justice named, but did not know where the other justice resided, nor but what a clergyman or notary public resided nearer the premises than the justice; held, that this made out a prima facie case of compliance with the condition of the policy on the subject, and threw the burden of proving a nearer magistrate, and the interest of the certifying justice, on the other side. Cornel v. Leroy, 9 Wend. 163 (N. Y.)

trates were nearer, and some even in the village where the fire occurred, and the magistrate granting the certificate at time of making it, called attention of the assured to the fact that he was not most contiguous, but assured yet persisted in having him make it; held, that such certificate was insufficient, and not in compliance with the condition. Lampkin v. Western Assurance Co., 13 Up. Can., Q. B. 237.

14.- Where condition of the policy required the production of a certificate of a magistrate nearest to the fire, and not interested in the loss, or related to the insured, and after the fire the assured obtained a certificate from the nearest magistrate, which did not conform with the requirements of the policy, and subsequently obtained two other certificates, which were in conformity with the policy, from magistrates residing at a greater distance from the fire than the first magistrate; held, that the condition was binding, and must be complied with, and that as there had not been a compliance in this case, assured could not recover. Noonan v. Hartford Fire Ins. Co., 21 Mo. 81.

11. When not sufficient. Where the nearest officer, who was a clergyman, certified as to the plaintiff's character, and that he verily believed that the fire was 15.-Assured made up his statement of the result of misfortune, and without any loss irregularly, and upon receipt of fraud or evil practice, but declined certi- | same, the secretary, by letter, called his

attention to the condition of the policy "requirement" of such certificate, within upon the subject of preliminary proofs the terms of the policy; and the insured and magistrate's certificate, and requested could not set up its insufficiency, eshim to have them made in accordance pecially where he understood and atwith the said condition. The assured tempted to comply with it. *Williams v. then drew up a statement, verified by Queen Ins. Co., 39 Fed. Rep. 167; 19 Ins. oath of himself and wife, as to value of L. J. 26. goods in the building at time of fire, but 18. A condition in an insurance poldid not say whether they were destroyed icy that the insured shall furnish a ceror not, or what was the amount of his loss tificate from the nearest notary, if reby such fire. The magistrate's certificate quired, is not violated until the certificate was also defective in this, that whilst tes- is formally required; and an objection to tifying that he verily believed that as- a certificate furnished is not such a resured had sustained loss to the amount of quirement. *Jones v. Howard Ins. Co., eight hundred dollars, there was nothing|26 N. Y. S. Rep. 844; 117 N. Y. 103; 22 N. to show that the loss might not have East. Rep. 578. been on other property, not insured. The company received these amended proofs and made no objection to them. Held, that they were clearly not in compliance with the condition indorsed on the policy, and that assured could not therefore recover. Langel v. Mutual Ins. Co., 17 Up. Can., Q. B. 524.

19. Who may sign certificate. The nearest magistrate who has property destroyed by the same fire is disqualified from signing a certificate. Ganong v. Etna Ins. Co., 6 Allen, 75 (N. B.)

20. Assured became insolvent after a loss, and the plaintiff was the official assignee. A certificate stated that the 16.- Condition required that the mag- subscriber was not in any way interested, istrate shall certify that "he has made that he had examined the circumstances diligent inquiry into the facts set forth in attending the fire, that he was acthe statement of the assured." The cer- quainted with the character of the astificate was "that I have read his state-sured, that he verily believed that the ment of loss, and, from diligent inquiries claimant, the assignee, had, as such asmade by me, I verily believe that he has signee, sustained loss or damage to the really and by misfortune, and without extent of $2,500; that the said claimant fraud or culpable carelessness, sustained loss of over $3,000." Held, insufficient, as it did not certify that he had made any inquiry as to the truth of the facts set forth in the statement, but only as to the amount of the loss, and that there was also a fatal defect in that it did not state that the loss was sustained on the subject-matter insured. Mason v. Andes Ins. Co., 23 Up. Can. C. P. 37.

and assignee has, without fraud or evil practice, sustained the said loss and damage. Condition required certificate from the magistrate or notary public most contiguous to the place of the fire, stating that he had examined the circumstances attending it, that he is acquainted with the character and circumstances of the assured or claimant, and that he verily believes that he has, by misfortune and without fraud or evil practice, sustained loss and damage to the amount which the magistrate or notary public shall cer

17. When required. Where a fire insurance policy provided that the insured, in case of loss, should, if required, furnish a certificate of a magistrate or notary tify. The certificate in question in this public nearest to the place of the fire, stating that he has investigated the circumstances and that the owner has sustained the loss claimed; and where proofs of loss were furnished without such certificate, and they were returned with a statement that they were incomplete and insufficient because not meeting the requirements of the policy with regard to such certificate,- there was a sufficient

case was subscribed by the coroner. Held, first, that the coroner was a magistrate within the meaning of the condition, but that the certificate as given did not comply with it, as it was, in fact, an evasion of the most essential part of the certificate required by the company. Kerr v. British America Assurance Co., 32 Up. Can. Q. B. 569.

21.- Policy required certificate of mag

istrate most contiguous to place of fire, in an action on an insurance policy is not and not concerned in the loss as a bound by the certificate of a notary apcreditor or otherwise." The magistrate pended to and forming a part of the who signed the certificate in question proofs of loss, in respect to the statement was the landlord of the assured and of the amount of loss, such certificate beplaintiff to whom the premises were ing furnished as a performance of a conleased for fifteen years, and at time of the dition in the policy. Birmingham F. fire the lease had nine years to run. The Ins. Co. v. Pulver, 126 Ill. 329; 18 N. East. lease contained covenant that the as- Rep. 804. sured would leave the premises in as good 26. As affected by distance. Where and sufficient repair as to be capable of policy required a certificate of a "magissawing 2,000 feet of lumber in twelve trate or notary public (most contiguous hours, the lessor agreeing to allow the to the place of the fire, and not concerned plaintiff to remove extra machinery that in the loss, or related to the insured),” might be erected by the assured more and assured applied to the nearest magthan required to saw such an amount in istrate, who was in every way qualified twelve hours at the expiration of as- to grant it, but refused to do so, and assured's possession, or, otherwise, the les-sured, thereupon, obtained a certificate of sor covenanted to pay the assured a fair another magistrate over a mile distant; compensation for the same. Court equally held, that any difference in point of disdivided as to whether or not the magis-tance, from the place where the fire octrate was concerned in the loss within the meaning of the condition. McRossie v. Provincial Ins. Co., 34 Up. Can. Q. B.

55.

curred, between the residence of the justices, was "material "-made so by the express terms of the contract—and the jury were bound to regard such difference in distance, as material, without any further inquiry on the subject. Protection Ins. Co. v. Pherson, 5 Port. 417 (Ind.)

27. Where there are several officers residing in the same immediate neighborhood, all of whom are competent to make the certificate, that of either of them will be a sufficient compliance with the condition, and a distance of a few yards more or less, from place of fire, will not be regarded as a matter of any importance. American Cent. Ins. Co. v. Rothschild, 82 Ill. 166; S. P. Williams v. Niagara Ins. Co., 50 Iowa, 561.

22. The nearest magistrate who has property which is burned by the same fire, and who has made complaint against the assured and plaintiff, charging him with the crime of setting the fire, is concerned in the loss, within the meaning of the condition, as he has a claim against the assured on account of the fire, and hence an interest in withholding the certificate. Under such circumstances the next nearest magistrate or officer is the proper party to give the certificate. Wright v. Hartford Fire Ins. Co., 36 Wis. 522; and see Smith v. Home Ins. Co., 47 Hun, 30; 14 N. Y. S. Rep 106; Etna Ins. 28.- Policy provided that assured Co. v. Miers, 5 Sneed, 139 (Tenn.) shall also procure a certificate, under the 23. The phrase "not concerned in hand and seal of a magistrate or notary the loss as a creditor," cannot disqualify public (nearest the place of fire, not conevery magistrate who may chance to be a cerned in the loss . . . ); that he has excreditor, even to a small amount, of the amined circumstances attending the loss assured. The phrase should be inter-. . . and verily believes that assured has, preted as requiring certificate of a magis- without fraud, sustained loss to amount trate who is not concerned in the loss by which such magistrate or notary shall reason of having an interest in the prop-certify. And until such certificate is furerty or in the policy as security. Dolliver v. St. Joseph Fire Ins. Co., 10 Ins. L. J. 380; 131 Mass. 39.

24. A notary public cannot be deemed a magistrate. Cayon v. Dwelling House Ins. Co., 16 Ins. L. J. 552; 68 Wis. 510.

25. Insured not bound. A plaintiff

66

nished loss shall not be payable." Notary who gave certificate in question had his office twenty-five rods from fire; his residence further. At same time Lloyd, a magistrate, had a place of business eight rods from fire. Allen, another magistrate, twelve rods, and Pitkin, another,

fifteen rods. Held, that above clause 34. Evidence and procedure in acwas a condition precedent, and that it tion. Signatures purporting to be those was not performed, as certifying notary of justices of the peace in proofs of loss was not the nearest, and company having plainly made and stated its objection to the certificate in due time, and assured having failed to furnish another certificate, he was not entitled to recover. Gilligan v. Commercial Ins. Co., 20 Hun, 93; affi'd (without opinion), 87 N. Y. 626.

29.- Where a policy of insurance requires a certificate of the nearest magistrate, the place of the magistrate's business, and not of his residence, will be regarded; and a nice calculation of distances will not be gone into, to ascertain what magistrate is the nearest. Agricultural Ins. Co. v. Bemiller, 70 Md. 400; 17 Atl. Rep. 380.

are admitted as genuine on trial in insurance cases, in the absence of proof to the contrary. Lafarge v. Liv. Lond. & Globe Ins. Co., 17 L. C. Jurist, 237 (Can.)

35. Upon an issue as to whether certificate has been furnished within a reasonable time, if the facts are undisputed, it should be determined by the court; a delay of eight months in this case, held, not to be unreasonable. Cammell v. Beaver & Toronto Fire Ins. Co., 39 Up. Can. Q. B. 1.

36. If notary is interested or related to assured it is matter of defense and need not be alleged or proved by plaintiff, but must be by defendant. Phoenix Ins. Co. v. Perkey, 92 Ill. 164; Phoenix Ins. Co. v. Duff, 9 Ins. L. J. 23 (Ill.)

30.- It is not necessary that a careful and correct measurement of distances should be made in order to determine who 37. Waiver. The policy required a ceris the nearest magistrate to give a certifi- tificate from the magistrate or notary cate of loss, as required by an insurance most contiguous to the fire. It appeared policy, where an honest effort is made to that a notary lived a few feet nearer the comply with that requirement. German-fire than the certifying magistrate, but American Ins. Co. v. Etherton, 25 Neb. whether his office was nearer did not ap505; 41 N. W. Rep. 406.

31. The certificate of the nearest notary, required by the policy, when he is a large creditor of the insured, is not essential. *Smith v. Home Ins. Co., 47 Hun, 30; 14 N. Y. S. Rep. 106. 32.

pear. It was held that the office might be regarded in ascertaining the magistrate most contiguous; and further, that the maxim, de minimis, etc., applied, and the court would not go into a nice calculation touching the discrepancy of a few feet in the distances. It further appeared that the certificate was defective, and the

An honest mistake in furnishing a certificate required by a policy to be made by the nearest notary, where it re-agent made written objections, but did quires actual measurement to determine the nearest official, is not a breach of the condition. Id.; and see Turley v. North American Ins. Co., 25 Wend. 374 (N. Y.) No. 37.

33. A provision in a fire insurance policy, that the insured shall, if required, produce the certificate of a magistrate or notary public nearest to the place of the fire, not concerned in the loss as a creditor or otherwise, or related" to the insured, stating that he has investigated the circumstances and believes that the owner has, without fraud, sustained the loss claimed-requires the certificate of the notary or magistrate nearest to the fire. That of the magistrate nearest, where there is a notary nearer, is insufficient. * Williams v. Queen's Ins. Co., 19 Ins. L. J. 26; 39 Fed. Rep. 167.

not specify the defects, and refused to let assured see the original certificates deposited with him; and the court refused to consider the defects. It was the duty of the company to point out the defects, and give every facility for their correction. Turley v. North American Fire Ins. Co., 25 Wend. 374 (N. Y.)

38. If certificate were not that of the nearest magistrate, and the company refused to pay on other grounds, they were held to have waived the objection. O'Neil v. Buffalo Fire Ins. Co., 3 N. Y. 122.

39.- Where a company, after receiving a certificate, which was not in compliance with the condition of the policy, entered upon an investigation of the loss, without immediately objecting to the certificate, and offered to pay a certain amount, which was refused by assured, and then

Waiver.

50. The retention of the notary's certificate furnished by the assured after objection to a former one, without further objection, is a waiver of delay in its produetion. *Smith v. Home Ins. Co., 47 43.- Agent having previously insisted Hun, 30; 14 N. Y. S. Rep. 106. upon a compliance with all the condi- 51. The company must seasonably tions of the policy, his silence upon re-object to the magistrate's certificate acceiving a letter forwarding certificate companying the proofs of loss, if defect