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either overt or in disguise, is a question which
we will not discuss. The telegraph, too, has
contributed its quota to the law, and now
comes to the front the telephone, the latest
and probably not the least important of mod-
ern inventions.

In our next number we will publish a very
important decision relative to telephone law
rendered within a few days past by the Su-
preme Court of Missouri. In our present
number will be found the opinion of Mr. Jus-
tice Miller, in the Bell Telephone case, de-
livered in the Supreme Court of the United
States affirming the jurisdiction of that court

Vol, 28— No. 1.

to order the cancellation of patents for in-
ventions, the issuance of which was obtained
by fraud. It is almost unnecessary to say
that this opinion of Mr. Justice Miller, like
all his opinions, is able and exhaustive. He
demonstrates beyond question the utter
fallacy of the theory that a patent for inven-
tions issued by the patent office of the United
States is a fixed fact as utterly unchangeable
as the laws of Medes and Persians. Such
seems to have been the view ot the United
State circuit court for the district of Massa-
chusetts, which held that the government of
the United States having once issued a patent
is bound by it for evermore, no matter how
fraudulent and corrupt had been the conduct
of the parties who had issued^nd obtained it.
We willnot, however, remark further on that
question, but refer our readers to the opinion
of Mr. Justice Miller, who treats the subject
with far more ability than we can.

We take this occasion to repeat our confi-
dent opinion that there is no branch of na-.
tional legislation which needs more thorough
revision and reorganization than the law re-
lating to patents for inventions. There seems
to be no sort of system or general principle
to which may be referred questions of the
validity and operation of a patent. Every-
thing seems to depend upon the discretion
and judgment primarily of the commissioner
of patents, and then upon those of the United
States circuit and district judges, each case
depending upon its own facts utterly irres-
pective of general principles. In the innu-
merable actions for infringement of patents
to be found in the reports of federal courts,
numbers of patents are declared *' void for
want of novelty " or other patentable quality,
and yet it is very rare that any definition of
patentability can be found in any of the
cases. We suppose that, to a very great ex-
tent, this indefiniteness is a necessary incident
of the subject-matter, and that in very many
cases the questions presented and adjudicated
are questioi^s of fact, but we should suppose
that in the many years that have elapsed
since this line of litigation was inaugurated
there would have been evolved in the opinions
of courts a sufficient number of general prin-
ciples to be formulated into something re-
sembling a code.

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Habeas Corpus — Chinese Exclusion Act
— ^BiLL OP Attainder. — ^We usually confine
our notes in this department of the Journal
to cases decided by courts of the last resort,
but we owe no apology to our readers for de-
parting from our rule by commenting on an
important decision recently made by Judge
Deady of the United States district court for

The facts were that a Chinese woman, born
in San Francisco in 1866, and therefore a
citizen of the United States, was a passenger
on a steamer from a port in British Columbia
for Portland, Oregon, where she was not per-
mitted to land, but was '^ restrained of her
liberty " by the master of the steamer. Upon
the hearing of her petition for a writ of habeas
corpus, her nativity and citizenship were es-
tablished to the satisfaction of the court,
which held that a person bom within the
United States is a citizen thereof, both at com-
mon law and under the XlVth Amendment
of the constitution of the United States, and
as such, is entitled to free locomotion within
the national territory, and to depart from
and return to the United States at his (or her

It is well known that on the Pacific slope
the popular sentiment is that '^the Chinese
must go," and under the recent Chinese ex-
clusion act it is added that they must go to
stay. The bill'forbids*any Chinese immigrant
who has left the United States to return with-
out a return certificate, and it was under
this act that the landing of the Chinese
woman was prevented. Judge Deady demon-
strates that the Chinese exclusion act does
not apply to the petitioner or any other Ameri-
can citizen ; if it did so it would conflict with
that clause of the constitution' which forbids
congress from passing any bill of attainder.
He further says :

'' A legislative act which undertakes to in-
flict the punishment of banishment or exile
from the United States on a citizen thereof,
and thereby deprive him of the right to live
in the country, for any cause or no cause, or
because of his race or color, is a bill of at-
tainder, within the clause of the constitution

1 In re Tung Sing Hee, 86 Fed. Bep. 487.
< Ex parte Chin King, 85 Fed. Bep. 854; In re Look
Tin Sing, 10 Saw. 858; 21 Fed. Bep. 905.
9 Article 1, 1 9.

of the United States, prohibiting the passage
of such bills, and is therefore void.''



1. SUtus of Plaintiff and Defendant.

2. Consideration.

8. Continuance of Policy.

4. Description of Property.

5. Loss.

n. Genkral Conclusions— Conditions—Sbttino

OUT Policy.
m. Special Conditions as to

1. Application.

2. Notice; Proofs of Loss; Magistrates' Certifi-

8. Interest; Title; Ownership.

4. Occupancy.

5. Demand; Amount Due.

6. Other Insurance; Abandonment; Repair.

7. Limitations.

lY. Curb of Errors in Declaration.

It is rare that declarations or complaints
on insurance policies are correctly drawn.
Almost always inaccuracies are found, such as
either necessitate demurrers and amendments,
or produce embarrassments lasting through-
out the litigation. These considerations ap-
pear to the writer to make it worth while to
state the essential elements of the complaint
or declaration in such actions, and to indi
cate the points wherein error is likely to

I. Aybrments AS TO. — 1. Stotus of Plaintiff
and Defendant. — It is so easy to identify and
describe the plaintiff and defendant in an
action on an insurance policy that not much
need be said on this point. Both parties
should be named ; the omission, without ex-
cuse, of the christian name of one of them
will be specially demurrable.^ If the declar-
ation is against a mutual company or society
plaintiff should aver membership therein.*
One person renewing a policy, originally
made to two, may declare on it alone.' But
the name of the person for whose use the
action is brought, need not be given.^ A
wife suing need not allege that the husband

1 Sturge y. Bahn, 4 Excb. 646.

SManlovev. Nay lor, 88 Ind. 424; Same ▼. Kaw, 89
Ind. 289; Same v. Bender, 89 Ind. 871; Whitman v.
Mason, 40 Ind. 189; Hashagan y. Manlove, 42 Ind. 880;
Teppecanoe Twp. y. Manlove, 89 Ind. 249; Downs y.
Hammond, 47 Ind. 181.

8 Lock wood y. Middlesex I. Co., 47 Conn. 558.

* Hayes v. Virginia M. P. A., 76 Va. 226; Mintes y.
Thompson, 2 Bast, 885.

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Vol. 28.



did not direct payment to be made to any
other person than to herself.^ The corpo-
rate capacity of the defendant (or plaintiff, if
it be a corporation), should be averred.*
Bat it is not necessary to aver compliance
with the statute authorizing the company,
defendant to do business in the State. ^ In
Kansas, the non-residence of the corporation
defendant is sufficiently alleged by averring
that defendant is a foreign corporation
created and existing under the laws of Con-
necticut, with its principal office in the city of
Hartford in that State.^ Nor is it necessary,
specifically, to allege that insurer's charter
authorized insurance against loss by fire
where the complaint alleges authority to in-
sure good and chattels — this must include all
kinds of insurance.*

2. Consideralion. — ^It is an elementary rule
'of law, which is generally observed, that a
consideration must be alleged.^*^ When divi-
dends are relied upon as constituting payment
of consideration their sufficiency must be
averred.*^ The order and time of an assess-
ment relied upon must be averred."

^. Continuance of Policy. — It must be
shown that the policy was in force at the
time of the loss.^ It is well to aver the dates
of the policy and of the loss under a videlicet^
else a variance may be fatal. ^^

4. Description of Property, — ^The property
covered should be accurately described. In
a suit on marine policy, it is enough to show
that divers goods were put on board and the
policy was made on said goods.^ It must be
averred that the property was in the building
or ship lost.^ But the description need only
be given by apt words reasonably applicable
io the property. Thus, in insurance on
^'goods," it was held enough to declare that
the defendant became an insurer of the
^'premises" in the policy mentioned.^^

5. Loss by the misfortune insured against

« Laudenschlager ▼. N. W. Assn., 80 N. W. Bep. 427.

« Texas, etc. Co. v. Davridge, 51 Tex. 244.

"7 Germania Ins. Co. v. Curran, 8 Kan. &.

« ^ina Ins. Co. y. Koons, 26 Kan. 215.

« West Mass. Ins. Co. v. Dufley, 2 Kan. 847.

10 Texas, etc. Co. v. Davridge, 5L Tex. 244.

11 Bulger ¥. Washington L. I. Co., 63 Qa. 828.
u Atlantic, etc. Co. v. Young, 38 N. U. 451.

^ Schroeder y. Trade Ins. Co., 12 Bradw. (111.) 651.
i^Ketchnm y. Protection Ins. Co., 1 Allen (N. B.),
186; Guschnor y. Keith, 9 Bradw. (III.) 416.

12 DeSymons y. Johnston, 5 B. & P. 77.

10 Todd v. Germania F. I. Co., 1 Mo. App. 472.
^ Houghton y. £wbank, 4 Camp. 88.

in the policy must be fairly stated. A fair
reasonable allegation is all that is necessary
in this particular. Thus, it has been held
that an allegation of loss from ''one of the
perils issued against" was enough."

Where the policy excepted loss caused by
fire which should ensue from the falling of a
building: Held^ sufficient to aver that the loss
was caused by fire and not by the falling of any
building.^ But an averment of loss, *'by any
reason of a fire taking place in the cellar of
said premises," was held insufficient because
it failed to State that the goods insured were
injured or destroyed by fire.^

II. General Conclusions; Conditions;
Sbttiug Out Policy. — Reasoning from the
analogy between contracts of insurance and
ordinary contracts it would seem sufficient to
declare by describing the parties, averring
the making and continuance of the policy,
describing the goods and averring the loss,
together with the demand and the refusal to
pay on the part of the company. And there
are decisions which appear to sustain this
conclusion. A general count has been held
good in New Hamsphire.** A count for
money had and received has been held suffi-
cient to sustain an action on a policy.^ And
probably these decisions are sound as to the
particular cases to which they are applied.

Declarations drawn in accordance with the
foregoing observations would be compara-
tively brief, simple documents, and such are
usuflJly the first declaration filed in these
cases. The trouble with them lies in the
fact that the policy of insurance is a condi-
tional contract, a fact which is either wholly
overlooked or the pleader puts in a general
averment that the plaintiff has performed all
the condition on his part to be observed,
leaving breaches of condition to be set up in

So far as provisoes and breaches of condi-
tions subsequent are concerned it is safe
pleading to leave the defense to set them up
by pleas. The rule is that defenses need not
be negatived.^ Facts which defeat part of
plaintiff's claim under special provisions of

^ Gartdde v. Orphans' Ben. I. Co., 62 Mo. 822.
^ Ferrer y. Home Mat. Ins. Co., 47 Cal. 418.
» Bode y. Rutgers' F. I. Co., 6 Bosw. 28.
^ New Hampshire, etc. Co. y. Hunt, 80 N. H. 219.
» Metropolitan, etc. Co. y. Drach, 101 Pa. St. 278.
» Phoenix Ins. Co. y. Moog, 78 Ala. 284; Simmons ^
Ins. Co.,8 W.Va. 474.

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No. 1

the policy need not be alleged.^* Conditions
subsequent need not be set out, nor per-
formance thereof averred.^ It is not neces-
sary to aver that the loss did not happen from
invasion, etc. These are provisoes for the
benefit of the insurer who must set them up
in defense.^ The plaintiff need not negative
breach of conditions prohibiting the use of
certain things on the premises of the insured.^
Nor is an affidavit of defense necessary.^
And the court will liberally interprete aver-
ments concerning provisoes and defenses if
made. Thus, "accepted risks" was con-
strued '* excepted risks." ^

But as to the condition precedent to the
right of action — and it is as to them that
declarations are usually defective or insuffi-
cient — a different rule exists. They are not
to be ignored and left for the defendant to
set up in defense with proper averments as
to their breach. It is plaintiff's duty to set
them out, and to aver performance on his
part. I know of no contract that contains so
many or such subtle conditions precedent as
insurance policies. They are rarely, if ever,
strait, unequivocal agreements to pay losses
upon their occurrence; but are contracts
with an "if" writ large and all over them.
The loss will be paid if a peculiar notice
thereof is given, if peculiarly formal proofs
of loss and magistrates, certificates are put
in, if the various warranties as to title, con-
dition, etc., of the property are true, if the
demand for payment be made not earlier than
a certain named time, etc., etc. These vari-
ous "ifs" arise out of as many conditions
precedent which are generally ignored by the
pleader but which should be set out with spe-
cific averments of performance. The general
rule as to this is thus given by Chitty : "If
there be any thing specific or particular in the
thing to be performed, though consisting of a
number of acts, performance of each must be
particularly stated."^ Following this rule a
federal court in one case says: "By this

« Pierce v. Charter Oak L. I. Co., 138 Mass. 151.

25 Forbes v. American, etc. Co., 15 Gray, 249.

s^Lounsbury v. Protection Ins. Co., 8 Conn. 469;
Cornell V. Leroy, 9 Wend. 163; Catlln v. Springfield,
etc. Co., 1 Sumn. 434. But, contra, see Simmons v.
In8.Co.,8W. Va. 474.

^ Hunt V. Hudson River Ins. Co., 2 Duer, 481.

w Morton v. Mutual L. I. Co., 12 Phila. 246; Biley
V. Mut. Ben. Assn., 2 Chester Co. (Pa.) Rep. 305.

29 Russel V. St. Nicholas Ins. Co., 52 How. Pr. 459.

80 1 Chit. Pi. 985, note 1.

policy of insurance the company agrees to
pay the loss only upon the conditions that
the plaintiff do certain things which the com-
pany deems essential for its own protection.
It must appear, therefore, that each and all
or these acts, as set out in the contract, have
been discharged or some legal excuse for
non- performance given before the plaintiffs
have a right of action. "^^ In Illinois, the
court lays down the following rule as to
averring conditions in the policy: *'The pol-
icy with the conditions annexed constitute an
entire contract, and in declaring upon the
contract, it, or a sufficient portion of it to
show a right of recovery, must be set out
either in terms or in substance. This is not
like suing on a formal bond at common law,
where the plaintiff might simply count on the
bond and leave the defendant to set up the
condition and plead performance. But in a
case of this character, money only being
payable upon the assured performing certain
acts, all such precedent acts should be set
out and their performance averred. But all
conditions subsequent to the right of recov-
ery, and all acts to be done by the company
in discharge of their liability, may be omitted
and left to be set up as a defense."^

It is, therefore, desirable to set out the
policy in hoec verba so that every condition
precedent may be shown. In Illinois, the
statute requires a copy of the policy to be
filed as part of the declaration.^ But it may
be filed as an exhibit with the declaration
and made part of it by proper allegation,**
although in Mississippi, it was decided that
exhibits annexed to a bill cannot be examined
for the purpose of determining whether a
demurrer should be sustained or overruled,
and is sufficient if the bill itself discloses a
prima facie right, notwithstanding it fails to
state that all the conditions of the contract
upon which it was founded have been ob-
served and performed.^ But while desirable

« Perry v. Pboanix Assurance Co., 8 Fed. Rep. 643.

S2 Rockford Ins. Co. v. Nelson, 65 III. 415. See also
Home Ins. Co. v. Duke, 43 Ind. 418; Edgerly v. Far-
mers' Ins. Co., 43 Iowa, 687; Home Ins. Co. v. Lind-
say, 26 Ohio St. 348; III. Mut. F. I. Co. V. Marseilles
Mfg. Co., 1 Gill. (III.) 237.

33 Commercial Ins. Co. v. Mehlman, 48 III. 313. See
also Peoria, etc. Co. v. Walser, 22 Ind. 73; Roberts v.
Germania Ins Co., 71 Ga. 478; Indiana Ins. Co. v.
Hartwell, lOu Ind. 6^6.

9* Northwestern M. L. Co. v. Hazlett, 105 Ind. 212.

« Stotham v. New York L. I. Co., 45 Miss. 581.

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Vol. 28.


to set out the policy in hcec verbay accurate
averments of its substance and effect may
be sufficient, if none of the essential condi-
tions are overlooked.** It is not necessary
to aver terms of a written policy iji a declara-
tion on a parol contract to insure,*^ and in a
count upon a reinsurer's policy the original
policy need not be set out.^

It is also desirable to make specific aver-
ments of performance as to each condition
precedent. General averments of perform-
ance are not enough.^ But under the liberal
practice allowed in the code States a general
averment of performance is considered
enough. Thus, in Indiana, it is a sufficient
allegation of performance of conditions pre-
cedent for plaintiff to aver "that he has in
all things observed, performed and fulfilled,
all and singular, the matters and things which
were on his part to be observed, performed
and fulfilled, according to the conditions,
form and effect" of the policy sued on,^ and
**duly fulfilled*' is equivalent to * 'per-
formed. "*i

In Alabama, a declaration on a life policy
is sufficient if it contains a statement of the
policy and an averment that plaintiff has
fulfilled all its conditions on his part, and that
in a specified way defendant has failed to
perform according to its contract.*^

Let us now examine the cases passing upon
averments relating to those conditions in the
policy that are most commonly precedent.

III. Special Conditions. — 1. Application,
— The rule is that if the policy makes the
proposals, answers, and declarations made
by the applicant a part of it, or are warran-
ties, the complaint in an action on the policy
is insufficient unless they are stated therein.^

w Troy Fire Ins. Co. v. Carpenter, 4 Wis. 20. See
also Tripp V. Vt. L. I. Co., 55 Vt. 100.

» Ganser v. Fireman's Fund Ins. Co., 34 Minn. 372.

« Cahen v. C )ntinental Ins. Co., 09 N. Y. 300.

« Perry v. Phoenix Assurance Co., 8 Fed. Rep. 648,
and auihorilie.<4 supra.

*> American Ins. Co. v. Leonard, 80 Ind. 272.

«u3E>na Ins. Co. v. Kettles, 81 Ind. 96. See also
Bichardson v. North Mo. Ins. Co., 67 Mo. 413; Union
Ins. Co. V. McGookey, 33 Ohio St. 565; Home Ins. Co.
V. Duke, 43 Ind. 418; Continental L. I. Co. v. Houser,
-89 Ind. 258; Scheiderer v. Travelers' Ins. Co., 58 Wis. 13;
Schobacber v. Germantown, etc. Co., 59 Wis. 86; Mut.
Ben. Assn. y. Bowman, 110 Ind. 355; The Dolphin, 1
Flip. 680.

<2 Brooklyn L. J. Co. v. Bledsoe, 52 Ala. 538. See
also Massachusetts, etc. Co. v. Kellogg, 82 III. 614;
Daniels v. Andes Ins. Co., 2 Mont. 78a.

« Bidwell V. Conn,, etc. Co., 3 Saw. 261; Bobbitt v.

But, in Michigan, the contrary has been de-

In Wisconsin, it has been decided that if
the complaint shows that the policy sued
upon refers to an application and declares
that it was a warranty, it need not set out the
terms of the application, or the existence of
the facts therein stated, or the performance
of the promises therein stated.^ The court
disapprove of Bidwell v. Ins. Co.,^ and
Bobbit V. Ins. Co.,^^ which it says are the
strongest cases holding the other way. The
grounds upon which they are rested are suffi-
ciently answered by 1 Chitty's PI. 225, 246,
311, and Gould's PL §§ 17, 19, 20, 21; sus-
taining this view are also a number of other
decisions.*® It is certainly not necessary to
set out the application where the representa-
tions in it are.not warranties.^

2. Not ice y Proofs of Loss and Magistrates*
Certificates. — Averments following the lan-
guage of the policy, that these prerequisites
to recovery have been furnished as provided
for must be made.** An allegation that
plaintiff ^^had fulfilled all the conditions of
the policy,*' will not be sufficient as an aver-
ment of furnishing proof of loss.^^ If notice
by mail is relied upon it must be averred that
it was properly directed, stamped, and placed
in the post-office.*^ It is sufficient to aver

Ins. Co., 66 N. C. 70; Glendale Woolen Co. v. Ins. Co.,
21 Conn. 19; Duncan v. Sua Ins. Co., 6 Wend. 488;
Burritt v. Saratof^a Ins. Co., 5 Hill, 188; Cbaffee v.
Caltarangus Ins. Co., 18 N. Y. 376; Battles v. York
County Ins. Co., 41 Me. 208: Ej^an v. Mutual Ins. Co.,
5 Donio, 326; Jennings v. Chenango Ins. Co., 2 Denio,
75; Routledge v. Burrill, 1 H. Bl. 254; Worsley v.
Wood, 6 Term Rep. 710; Geach v. Ingall, 14 M. & W.
95; Strong v. Rule, 3 Buig. 815; Kennedy v. St. Law-
rence Ins. Co., 10 Barb. 285; Murdock v. Cbenango
Co. Ins. Co., 2 N. Y. 210; Wilson v. Herkimer Co. Ins.
Co., 6 N. Y.53; Tebbetts v. Hamilton Ins. Co., 1 Allen,
305; Ripley v. iEtna Ins. Co., 30 N. Y. 136; 1 Phil, on
Ins. (5tb ed.), 413, 414, $ 756; 1 Arnould on Ins. 578.

« Throop V. North Am. Ins. Co. 19 Mich. 423.

4« Redman v. ^Eina Ins.. Co., 49 Wis. 431.

4« 3 Saw. 261.

47 (56 N. C. 70.

*8 Fishier V. California, etc. Co., 66 Cal. 178; Conti-
nental L. I. Co. V. Eessler, 84 Ind. 310. See also Mut.
Ben. L. I. Co. v. Cannon, 48 Ind. 264; Commonwealth
Ins. Co. V. Monninger, 18 Ind. 352; Penn., etc. Co. v.
Wiler, 100 Ind. 92; Northwestern, etc. Co. v. Hazlett,
105 Ind. 212; Guardian, etc. Co. v. Hogan, 80 111. 35.

« Union Ins. Co. v. McGookey, 33 Ohio St. 555.

fio Dolbier v. Agricultural Ins. Co., 67 Me. 180; Cres-
cent Ins. Co. y. Camp, 64 Tex. 621; Edgerly v. Far-
mers* Ins. Co., 43 Iowa, 587; Tayerweaiher v. Phoenix
Ins. Co., 7 N. Y. Superior Ct. 26.

" Royal Ins. Co. v. Smith, 8 Ky. Law Rep. 521.

w Haskins v. Kentucky, etc. Soc, 7 Ky. Law Rep.

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No. 1

facts implying notice as required.^

Of course, there are decisions made under
policies where notice, proofs, and certificates
are either not essential or have been waived,
which hold it unnecessary to aver furnishing
of such papers. It has been held unneces-
sary to aver magistrate's certificate,^ or that
the magistrate was the one nearest the loss ;^
or that the notary who certified the loss was
not interested ;^ or to allege due notice and
proofs of loss furnished according to the re-
quirements of the statute ; ^^ or to allege an
award made.^ But every case depends upon
the wording of the condition in the policy,
determining whether it is a condition prece-
dent to be specially averred or not.

3. IrUereat — Title — Ownership. — It id com-
mon to insert a precedent condition in a
policy as to the insured being either the ab-
solute, unqualified owner of the property
covered, free from incumbrance, or stating to
the company what his interest or the incum-
brance therein is, if it be less than a fee-sim-
ple or absolute ownership. In such cases
the plaintiff must show himself within the
condition. It is, therefore, necessary to aver
such an interest as the policy requires.**

What is the proper form for averring in-
terest depends on the wording of the condi-
tion in the policy. It is best to follow this
as closely as practicable. But some of the
foregoing cases hold a general averment of

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