Leadbetter v. Etna Ins.

After a continuance, nisi, the opinion of the Court was drawn up by Weston C. J. We are clearly of opinion, that the plaintiff at the]| b’ial failed to exhibit the preliminary proof, made a condition precedent to his right to recover. It was a condition fairly and rightfully imposed, fully accepted, and made a part of the policy. It -was of a character not to bo misunderstood ; and was interposed to protect the defendants against fraud. As insurance companies, who enter into extensive contracts of this kind, arejiable to great impositions, they are justified in taking every precaution, which common prudence may suggest. In Worsley v. Wood et als. 6 T. R. 710, which was upon a policy against fire, it was one of the printed conditions accompanying the policy, that in case of loss, the assured should procure from the ministers and churchwardens, and from some respectable householders of the parish, not concerned in interest, a certificate like that required in the policy under consideration. The assured procured and delivered a certificate in the requisite form, from four reputable householders of the parish, and alleged in their declaration, that the minister and churchwardens of the parish, wrongfully and unjustly, and without probable cause, refused to join in such certificate. Upon an issue being made up upon this point, the jury found in favor of the assured. The case was twice argued, and received great consideration from the court. It was finally decided, that the certificate of the minister and churchwardens was a condition precedent, to the right of the assured to recover. That if unreasonably refused, it was their misfortune; but that without it, they could not prevail. That the company [268] had a right to impose their own conditions, for which they were not bound to receive any substitute whatever. Dawes v. The North River Insurance Company, 7 Cowen, 462, which was assumpsit on a policy against fire, Savage C. J., who delivered the opinion of the Court, says, “ in cases of this kind, great strictness is required; and the plaintiff cannot recover, without a literal compliance with the conditions.” And in the Columbian Insurance Company v. Lawrence, 2 Peters, 25, the certificate of a magistrate or sworn notary, required by the conditions, was held indispensable preliminary proof. In the case before us, the defendants were not to be held to pay, unless the assured procured the specified certificate, from the nearest magistrate, notary or clergyman, This was withheld, for what reason does not appear ; but without it, the plaintiff cannot prevail in this action. Nonsuit confirmed.