OFFICIAL ASSIGNEE V SOUTH BRITISH. IMPORTANT JUDGMENT.

Te Aroha News, Volume VII, Issue 385, 17 July 1889, Page 3

OFFICIAL ASSIGNEE V SOUTH BRITISH. IMPORTANT JUDGMENT.

-Tins following is' l the judgment delivered by His, Honor Mi-, Justice Gillies, yesterday ■afternoon, on the motion by Mr IH. Hesketh to get aside judgment, and to enter judgment Qjf non-Ruit; or to grant a new trial, in the aqbioh brdught by the Oflicial Assignee "in the estate of Herbert M 13 rad bury against the South British Insurance Company, recently dooided itf favour of the main tiff : — His Honor said-: Ibso'emstome that the 'whole of this quostion turns'upon the correctness or othorwise of my direction to the jury fonbhem'bo consider whether there was 'a substantial compliance with the conditions qftthe policy ; and [should have been glad to have had that question more .directjy* raided, for the verdict of the jury must held 4 to have affirmed that these conditions, , substantially complied with. ''XilX am wrong in 'directing the jury that a substantial compliance was enough, without "•& literal compliance, then of course it must tje th'a't'thtf motion might be granted^ if it were 'necessary that there should be U "literal compliance with the cotadtftidns', because it is admitted on the part of' >fchß p'lainbifl that there was not a •literal, 'compliance with -the, conditions. J>ut it sSaen-it, tome thaC-io^eii many of the cases tfofltolLa-vo been cited indieato that a substantial compliance is w^at is requited — that is* to ..say,, the intended to be giyejii to the Company by these conditions oupht to be 'eniorcc.l. Well, then, a substantial compliance with the conditions?, apart' irom a liberal compliance, give's the protection desired 'to the Company; and the jury founds that the substantial Wnjpltanco with ■ the conditions has taUen pl&ee ; 'and it'Sqcmd to mo, al>»o, that they vrej?e fairiy entitled to draw that conclusiou., in tact, i agiee with them that inhere was a substantial compliance, although inhere was not a literal compliance with the conditions ot the policy. The object of the&'e' condition';— the -scheme and the object of the conditions that bho assured is to pub in' a claim and veiify it by declaration'before \\ Justice of the Peace — is evidently intended . for < the> protection of the' Company, .against- an unfounded claim, an excessive < claim, excessive valuation, ,or, anything of that sort, And I think ijhe j-uvy,, might very fairly draw the conclusion .which I draw from it — that ,tlie agreement of bhe assuied made With the Cpnipa'ny the day after the Hie was vpjuntarijy td the 'appointment ol an arbiter to examine an"d w value the goods injuied by ,'^he fire. N That 'seems to me what is pro1 perly- called ti '* waiver " of tho conditions ; the. substitution 06 -another and a better mode. for the Company of ascerUiininpc.thc ifctou^ e^jbenb- o-f the 'loss- than the calling upon., thej , .assored , /.o .ipake .au'b his ,pluim 4>( send „i\> in, and verify ib'/h'y de.clar.ation.,, r ilere,- was another ''method "prpgo'sgd by Company, and assented to '■by *th>e'"hts^ured,i^r. getting such a;i estimate of bl^ x lo^y as^ would be- a fair and. just one; ir?3tead ot f^Uriting merely to a claim pub in by fch'ea^ui'eH alid thQ makingoha de'elarationy vi *nlJft(?6r. which do not usually '-pertef'm iwrtrh-^niKci«nb; solemuiby upon' these 'occasion*. ,1 can &ea; r cqly think that the agreement for this arbitration ,can ,il^lields fe bp^under thp fifteenth ecction»J I «d^ubtc t^^J>,; but it »eeni& to me tsj^tj it.^'i)^ a^i/4s^,{?3 ent which the assured -w.afr ,nbb°" af^.jilT "obliged 1 ' to have en-t^e7{-;ir.t^*M'-;^e- time. - o»here - \va.'& nobhinglo t^M^ei Mm to enfe^Mtfi su6h an rtgree'merib! il, he assented to It, a"Ald manifestly with the intjciitioh offeeVtti'^thmgßv -and, as tjh'e- Com- • pany's agent said, avoiding the probability 'or >j)QK4ib"jliby ,of any, djdpute 'as >td'bho rtotUal; Joae>> , T^t /did not prevent the- ( Company from/ laising a que&tion of ; ownership. Tbftt i-^ clear, as Mr Hesketh has, argued f'rpn^the policy itself. Id did ,not wipe oub^all the conditions ot the pqlicy. but jit; ' satisfied ,fche conditions ( which required ' 'the plajnbifl to pub in •' a plaim and fco 'verify' it ; and thdse were \ things intended to prevent fbhe ComfKiny frpm leceiving- ,an exaggerated claim which they could not otherwise have t-aved themselves again.st. Therefore, tho jury were really right in concluding that virtualJLy, although 'there was not a literal performance at the conditions, they were, either .substantially complied with, .or, op the other hand, that this u^ieemqnt was Substituted, by consent , or both *jjartifsf tbr, tho&o -conditions that are'spet'ificjjily'r'efied upon, \iz., the coudi.biojis as' to' the ' Claim and \reriticabion. Such being my opinion, 1 think that the \erdiet of the jury, was right under the ciicumsbances, and that this motion must be di«- | missed^ , >i