tion of the point, we are of opinion that the judgment of the Queen's Bench was right; and, in concurrence with that Court, we do not feel disposed to extend further than we are compelled to do the extreme hardship and anomaly that one man's property may be taken to pay another man's debt. There must therefore be judgment for the respondents. Judgment for the respondents. 1860. FOULGER v. TAYLOR. JULIA TREW and GARDNER HIORNS, Executrix and Executor of FREDERICK HIORNS, deceased, v. THE RAILWAY PASSENGERS ASSURANCE COMPANY. Jan. 20. H. effected fendants a policy of assurance whereby with the de that if he should sustain they agreed any injury accident or DECLARATION on a policy of assurance for 2501. effected by one Frederick Hiorns with the defendants, whereby the defendants agreed that if the said F. Hiorns should sustain any injury caused by accident or violence, within the meaning of the said policy and the conditions thereto, and should die from the effects of such injury caused by within three calendar months from the happening thereof, then the funds and property of the defendants should be subject and liable to pay the sum thereby assured to the legal representatives of the said F. Hiorns, upon satisfactory proof of such death.-The declaration set out the policy, and averred that, whilst it was in force, the said F. Hiorns sustained an injury caused by accident, and died from the violence, within and the condi and should die from the effects of such injury within three calenda months from the happening thereof, then the funds and property of the defendants should be subject and liable to pay the sum thereby assured. The policy contained a proviso that no claim should be made in respect of any injury, unless the same should be caused by some outward and visible means, of which satisfactory proof could be furnished to the directors. On a Saturday afternoon H. went to Brighton by railway, having a ticket which entitled him to return by it on the following Monday. About 7 o'clock on Monday evening he left his lodgings, having expressed an intention to bathe before he returned to London. His clothes were found on the steps of a bathing machine, and about six weeks afterwards a body was washed ashore on the Essex coast, which his brother and some acquaintances deposed at an inquest was his body, but the jury found that it was the body of a person unknown.-Held, that, assuming H. was drowned whilst bathing and that the body found was his body, still there was no evidence that he died from an injury caused by accident within the meaning of the policy. 1860. TREW effects of such injury within the period from the happening thereof prescribed by the said policy.-After the usual averments of the performance of conditions precedent, the PASSENGERS declaration alleged as a breach that the defendants had not COMPANY. paid to the plaintiffs the said sum of 2501. v. RAILWAY ASSURANCE Pleas.-First: That the said F. Hiorns did not sustain an injury caused by accident, nor die from the effects of such injury within such period as alleged, modo et formâ. Secondly: That satisfactory proof of the death of the said F. Hiorns was not furnished to the defendants.Issues thereon. At the trial, before Pollock, C. B., at the London sittings after last Trinity Term, it appeared that the assured, Frederick Hiorns, who was about twenty-six years of age and unmarried, had been in business as an ironmonger, and was an uncertificated bankrupt. Previous to the 19th August, 1856, he effected two policies of assurance on his life. On that day he made a will, by which he appointed his sister and brother, the present plaintiffs, his executrix and executor. He shortly afterwards effected two policies of assurance against accident, and on the 6th September, 1856, he effected with the defendants the policy upon which this action is brought. This policy (so far as material) is as follows: "RAILWAY PASSENGERS ASSURANCE COMPANY. Empowered by Special Act of Parliament 12 & 13 Vict. cap. 40. "Whereas Frederick Hiorns, clerk and collector, of 1860. TREW v. RAILWAY ASSURANCE No. 4, Curzon Street, May Fair, and 5, Jermyn Street, London, the person assured by this policy, is desirous of effecting an insurance against accidents of every description with the Railway Passengers Assurance Company in the PASSENGERS sum of 2501., and hath caused to be delivered into the office of the said Company a declaration in writing, signed by him or on his behalf, and bearing date the 3rd day of September, 1856. And the said assured hath agreed that such declaration shall be the basis of the contract between him and the said Company. And whereas the said assured hath paid to the said Company the sum of one pound as the premium for such assurance for one year, to be computed from the day of the date of this policy, the receipt whereof is hereby acknowledged. Now therefore this policy witnesseth that the said Railway Passengers Assurance Company doth hereby agree, that if at any time before the expiration of one year to be computed from the day of the date of this policy; or if at any time during his life, whilst he or his assigns shall at the expiration of each year from the day of the date of this policy pay the premium above specified, the said assured shall sustain any injury caused by accident or violence within the meaning of this policy and the conditions hereto; and if the said assured shall die from the effects of such injury within three calendar months from the happening thereof; then the funds and property of the Company shall be subject and liable to pay the full sum hereby assured to the legal representatives or assigns of the assured, upon satisfactory proof of such death being furnished to the directors. And if the said assured shall sustain any personal injury caused as aforesaid which shall not be fatal, then, on satisfactory proof of such injury being given to the directors, compensation shall be paid to him at the rate of one pound ten shillings per week for a period not exceeding fifty-two weeks for any single accident, so 1860. TREW v. RAILWAY ASSURANCE long as he shall be incapacitated thereby from following his usual employment in consequence of such injury. "Provided always that this policy is granted upon the PASSENGERS express condition that the aforesaid declaration is true, and that if either this policy or any renewal thereof has been obtained through any misrepresentation or concealment by or on behalf of the said assured, the same shall become absolutely void, and all premiums paid in respect thereof be forfeited to the Company. "Provided also, that no claim shall be made under this policy by the said assured in respect of any injury unless the same shall be caused by some outward and visible means of which satisfactory proof can be furnished to the directors; and that this assurance shall not extend to any injury caused by natural disease, or by any surgical operation rendered necessary by disease, or to any injury caused by duelling or other breach of the law; and that the Company shall not be liable for any death caused by suicide, whether felonious or otherwise; or for any death or injury caused by war or invasion, or by the wilful act of the assured in exposing himself to any unnecessary danger or peril, or whilst the assured shall be in a state of intoxication." At the time Hiorns effected this policy he was clerk to one Pierce, an ironmonger in Jermyn Street, London. In July, 1856, Hiorns had been under medical treatment in consequence of having strained himself, and for five or six weeks was unable to attend to his duties as such clerk. Shortly after his return to business he obtained leave of his employer to be absent from Saturday afternoon, the 13th of September, to the following Monday evening, in order, as he stated, that he might go down to Brighton and have some sea bathing and a change of air, for the benefit of his health. He accordingly left London by railway between five and six o'clock in the evening of the 13th of September, and arrived at Brighton between eight and nine o'clock, having taken a ticket which would entitle him to return on the Monday following. He took with him a small carpet bag containing some clothes and a truss. He spent the following Sunday and Monday in the society of some friends, with one of whom he parted about a quarter to seven o'clock in the evening, stating that he intended to go to his lodgings and should then endeavour to have a bath before he returned to London. He accordingly went to his lodgings, which he left about seven o'clock, apparently going in the direction of the sea; and he was not seen alive since. About eight o'clock, a person, who happened to be passing along the beach, saw a suit of clothes lying upon the top of the steps of a bathing machine; he could discover no one in the water, and after waiting some time he went for a policeman, who came and took possession of the clothes. These clothes were afterwards identified as those of Hiorns, and the same he was dressed in when last seen alive. He had a watch, but it was not found, nor any money. Advertisements were issued, and every inquiry made as to the finding of any body upon the coast, but without effect until on 30th October following, when a naked body was washed ashore at Walton-on-theNaze, which is situated on the Essex coast and is between 100 and 200 miles distant from Brighton. An inquest was held on this body, which, according to the opinion of a medical man, had been in the water from six to seven weeks; and one of the plaintiffs and two friends of Hiorns deposed that it was his body: the jury, however, found that it was the body of a person unknown. Upon these facts the learned Judge was of opinion that there was no evidence that Hiorns was dead, and assuming that he was, there was no evidence that his death was 1860. TREW v. RAILWAY PASSENGERS ASSURANCE COMPANY. |