McKAY v. SOUTH BRITISH INSURANCE COMPANY.

Poverty Bay Standard, Volume X, Issue 1168, 6 October 1882, Page 2

McKAY v. SOUTH BRITISH INSURANCE COMPANY.

This was an action brought by Air D. G. McKay to recover £lOO, the amount of a policy of insurance on his house, granted by the South British Insurance Company. The arguments on both sides were striking, as they were contradictory, and the decision of the Magistrate affords a beautiful sample of the gloriously simple uncertainty of the la w. \Vc place the arguments offered by Mr Kenny before our readers : — Mr Kenny said that the 17th condition providing that action should be broughtwithiii six months was wholly illegal and void ; (1.) Because any agreement to oust the Courts of Law or Equity of their jurisdiction is void on grounds of public policy. (2.) Because it is a principle of the law which has never been disputed that if a man covenants in his own name for the performance of some act or duty, and then seeks by proviso to relieve himself from all liability upon the covenant, the proviso shall be rejected as being repugnant to the covenant. (1.) Void, because it ousts the jurisdiction, &c., contracts opposed to public policy : liroom's Com. 360 ; diruom's Jl' , /;r.()62 ; Broom's Com. 44 ; Addison's Con. 892. This 17th condition is obviously inconsistent with and opposed to the contract of insurance, anil is therefore not binding on the plaintiff: for by the contract of insurance, the law presumes that a claim for compensation may be enforced by the ordinary mode of proceeding in the Superior Courts. All the authorities show that contracting ! parties cannot even by the adoption of the most express language oust the jurisdiction I of the ordinary ('ourts of Law and Equity, j Vide Co. Litt, 53 B, it is said, Exch. R. 8, 494 : Coleridge, J. Exch. R. 8, 501 : Horton and Sayers, H. and N., 4, (i 18-649. (2.) Void, because repugnant, Addison Con. 1038; analogous point in respect to carrier, Addison Con. 464 : e.r antecedentibus et. consequentibus Broom’s Ma.x. 517. “ Conditions are illegal when they are repugnant, i.e., inconsistent with the estate or interest to which they arc annexed,” Smith re Personal Property, 89. Furnival v. Coombes, Exch. 8, 498. Shephard’s Touchstone,373, after quotation, Exch. Elliott v. The Royal Exchange Assurance 494. Company, L. R. Exch. 2, 237. Bramwell B. explains Arcy v. Scott, L. R. Exch. 2, 815. Finally, Street v. Rigby, shows that the same doctrine has been laid down by the Courts of Equity, 6 Vie. 815. In that case it was ruled that even though the agreement be not against the policy of the law, yet if it is an effort to divest the ordinary jurisdiction of the common tribunals of justice, the Court of Chancery will not interfere to enforce that agreement. This was a partnership case, and it was followed in British Empire. Shipping Co. v. Jones, 3 Kay ami Johnson, 433. As to the contention that McKay had no interest at the time of Insurance or at time of five. Nature of interest, Addison Con. 550; insurance? by bailees, Addison Con. 555. Bailment is the delivery of goods on a condition expressed or implied, that they shall be restored by the bailee to the bailor, or according to his directions us so. The interest ' need not be absolute property, Roscoe 414; i (1). Marks v. Hamilton, V Exch. 323; N.B. I applies also very sf.rongly to furniture, 324 ; Poole v. Adams, see L. R., C. D. 14, 301 ; (4). Raynor v. Preston, L. R., C. D. 300; Poole v. Adams, L. 'l'., 10,288. Inthiscusc the Vice-Chancellor decided that when there has been a contract of sale and house burnt down the vendor in absence of expressed contract is entitled to insurance. Collingudge v, Royal Exchange Assurance Corporation, L. R., Q. B. 3, 176. Very strong case, Griffith v. Alontefiorc, Keiford and Box, 353.