and provisions of the said deed of settlement, so far as the same were applicable to policies of the said company, were in all respects the same as and no other than the terms and provisions of the said policy thereinbefore set forth; that the said policy remained and continued in full force up to and until the death of the said William Warre Simpson as thereinafter mentioned; that, whilst the said policy was so in force as aforesaid, the said William Warre Simpon received and suffered bodily injury from an accident within the meaning of the said policy, which said accident caused his death within three calendar months after the occurrence of the said accident;(a) that proof satisfactory to the said directors was furnished of the death of the said William Warre Simpson, more than one calendar month before suit, together with such further evidence and information as the directors thought necessary to establish the claim, and the medical agent of *the said company

*268] was admitted to see the said insured, and to examine the injury

received by him, when and as often as in the opinion of the directors it was necessary; that the death of the said insured was occasioned by an external and material cause operating within the meaning of the said policy and as therein provided; that notice in writing of the plaintiff's claim on account of the said accident, was given to the defendants within one calendar month after the occurrence thereof, and before this suit, the said accident having occurred in Great Britain; and that the said accident did not occur in consequence of the said insured being, or whilst he was, engaged or employed in actual service in any such capacity as in the said printed regulations and conditions mentioned, or whilst he was employed in any mine or quarry or otherwise as therein also mentioned, or whilst he was upon the sea in the course of his occupation as above mentioned, nor did his said death arise from any surgical operation the necessity for which was not occasioned by such accident or violence as aforesaid, or from duelling or prize-fighting, nor was the claim of the plaintiffs one made in respect of death by suicide, or by the hands of justice, or in respect of any injury inflicted intentionally on the said William Warre Simpson by himself or with his consent, or of death or injury which happened to him while acting in breach of the law, or which was occasioned by the wanton and voluntary exposure of himself to obvious or unnecessary risk or injury; that no difference of opinion had ever arisen between the plaintiffs and the defendants as to the amount of compensation payable in this behalf; and that, although all conditions precedent had been performed, and all things had been done and happened, and all times had elapsed, so as to entitle the plaintiffs to maintain this suit, and although the subscribed capital and other funds and property of the said company *for the time being remaining unapplied and undisposed of and not applicable

*269]

(a)" and within twenty-one days after the 22d of January, 1856."

to prior claims and demands in pursuance of the trusts, powers, and authorities of the said deed of settlement, at all times were and still remained sufficient to make good and pay to the plaintiffs the said sum of 2000.,-of all which premises the defendants had always had notice, yet no part of the said sum of 20001. had ever yet been paid: and the plaintiffs claimed 2500l.

The defendants pleaded,-first, that, before the said William Warre Simpson received or suffered such bodily injury from accident as in the declaration alleged, and before the death of the said William Warre Simpson, to wit, on the 22d of January, 1856, one of the said premiums of 127. on the said policy, payable as aforesaid, accrued and became and was due, and the same remained and was unpaid for the space of twenty-one days next after it first accrued and became due, and had never been paid; whereby the said policy became and was and is void; and that all claim on the defendants in respect thereof for the said 20001. ceased.

And, for a third replication to the said plea, upon equitable grounds, the plaintiffs said, that the day on which the said premium became due as in the said plea mentioned, was the 22d of January, 1856, and that the said William Warre Simpson died, as in the declaration mentioned, on the 1st of February, 1856; that the said William Warre Simpson had in his lifetime fully intended to pay the said premium within the said period of twenty-one days after the said 22d of January, 1856, but had not done so at the time of his death, and that, from that time until after the expiration of the said last-mentioned period, there were no executors, administrators, or assigns of the said William Warre Simpson in existence legally authorized or entitled to pay the said premium, or to deal or intermeddle with the said *William Warre Simp[*270 son's personal estate or effects; that it was impossible for the said William Warre Simpson, his executors, administrators, or assigns, to pay the said premium during the said last-mentioned period; and that, from the time when probate of the said will of the said William Warre Simpson was granted, the plaintiffs, as such executors as aforesaid, had always been and were ready and willing to pay and allow the said premium to the defendants in the usual way, together with interest thereon at the rate of 51. per cent. per annum (if required) from the time when the same first became payable,-of which premises the defendants had always had notice.

Demurrer and joinder.

The demurrer was argued in Hilary Term last, by Hawkins, in support of it, and Byles, Serjt., contrà.

The points urged on behalf of the defendants, were,-First, that, as by the policy, it was expressly conditioned that the annual premium should be paid on or before or within twenty-one days after the 22d of January in every succeeding year so long as the acting directors for

the time being of the company should accept the same, the fact of the testator having died between the 22d of January, 1856, and the twentyone days after it, and of there being no executors, administrators, or assigns of the testator in existence authorized to make the payment, the facts stated in the replication, constituted no excuse or discharge at law or in equity for the non-payment of the premium on the 22d of January, 1856, or within the twenty-one days afterwards,-Secondly, that the replication showed no answer at law or in equity to the defendants' plea and the following authorities were cited,-Sparks v. The Liverpool Water Works Company, 13 Ves. 428, Davis v. Thomas, 1

*Russ. & M. 506, Job v. Banister, 2 Kay & J. 374, Pearson *271] v. The London & Croydon Railway Company, 14 Sim. 541, and Burgh (or Bird) v. Legge, 5 M. & W. 418,† 7 Dowl. P. C. 814.

The points urged on behalf of the plaintiffs were,—First, that the third replication was a good answer to the plea, inasmuch as it disclosed circumstances which in equity entitled the plaintiffs to be relieved from the forfeiture of the policy,-Secondly, that as, by the terms of the policy, the premium might have been paid by the representatives of the deceased within twenty-one days after the 22d of January, and as such payment became impossible by inevitable necessity, the plaintiffs ought in equity to be relieved against the forfeiture, and allowed the benefit of the policy and the following cases were cited,-Eaton v. Lyon, 3 Ves. 689, Firman v. Lord Ormonde, Beatty (Irish), 347, and also the 83d, 84th, and 85th sections of the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125.

After argument, the plaintiffs obtained leave to amend their replication, but ultimately they declined to avail themselves of it, and the defendants had judgment on the demurrer.

The cause went down for trial upon the issues of fact, which were as follows:

Second plea, that the said accident did not cause the death of the said W. W. Simpson.

Third plea,—that the death of the said W. W. Simpson was not occasioned by any external and material cause operating upon his

person.

The plaintiffs took issue on the second and third pleas.

First replication, to the first plea,-that the defendants ought not to be admitted or received to plead *the said first plea, or to make *272] the allegations therein contained, because the plaintiffs said that the day on which the said premium became payable as in the said first count mentioned was the 22d of January, 1856, and that the said W. W. Simpson died on the 1st of February, 1856; and that, from the time of his death until the expiration of twenty-one days next after the said 22d of January, 1856, the plaintiffs were in communication both by letter and otherwise with the defendants upon the subject of the said

policy and of the death and the cause of the death of the said W. W. Simpson, and the claim which is now made by the plaintiffs in this action: that, in the course of and during such communications, the defendants by their conduct caused the plaintiffs to believe, and the plaintiffs accordingly did believe, and acted upon the belief, that the said policy was in full force and effect for the year ending the 22d of January, 1857: that the plaintiffs had no means of ascertaining, and did not nor could in fact ascertain, from any documents of the said W. W. Simpson, or otherwise than from the defendants themselves, whether or not the said premium had been paid or the said policy was in force for the year ending the 22d of January, 1857: and that, if they, the plaintiffs, had known that the said premium had not been paid, and that the policy would not be in force for the said last-mentioned year, unless the same were paid within the said period of twenty-one days, and if the plaintiffs had not been deceived and misled by the words and conduct of the defendants as in the replication aforesaid, the said premium would have been paid within the said period of twenty-one days.

Second replication, to the first plea,-upon equitable grounds,—that the defendants ought not to be allowed to plead the said first plea, because the plaintiffs said that the day on which the said premium became payable *as in the said plea mentioned, was the 22d of [*273 January, 1856, and that the said W. W. Simpson died on the 1st of February following; and that, from the time of the death of the said W. W. Simpson until after the expiration of the said period of twenty-one days in the said plea mentioned, the plaintiffs were in communication both by letter and otherwise with the defendants upon the subject of the said policy and of the death and the cause of the death of the said W. W. Simpson, and of the claim which is now made by the plaintiffs in this action: that, throughout the whole course of those communications, the defendants led the plaintiffs to believe, and the plaintiffs did accordingly believe, that the said policy was in full force and in effect for the year ending the 22d of January, 1857, and that they, the plaintiffs, so considered it, and that there was no question between the plaintiffs and defendants as to the said policy being in full force and effect for that year, and that the only questions between the plaintiffs and defendants were whether the said accident did or did not cause the death of the said W. W. Simpson, and whether his death was or was not occasioned by any external or material cause operating upon his person that they, the plaintiffs, had no means of ascertaining otherwise than from the defendants themselves whether the said premium had been paid by the said W. W. Simpson in his lifetime; and that it was entirely owing to the premises in the replication aforesaid, and particularly to the conduct of the defendants in the course of the said communications, that the said premium was not duly paid within the said period of twenty-one days: that they, the plaintiffs, were in fact

misled and deceived by the conduct of the defendants, and that the defendants intended to mislead and deceive them in that behalf, for that (amongst other things), immediately after the expiration of the said period of twenty-one days, when it was just too *late (according *274] to the strict terms of the said policy) for the plaintiffs to pay the said premium, the defendants intimated to the plaintiffs for the first time, and in the course of communications which were then passing with respect to the aforesaid question, that the policy was not in existence, they the defendants having during the whole of the said previous communications led the plaintiffs to believe the contrary, and to deal with them the defendants upon that belief and understanding: and that they the plaintiffs on their part had always kept good faith with the defendants, and had been and were then ready and willing to allow the said premium, with interest, to the defendants, by way of deduction as aforesaid, of which premises the defendants had always had notice. The defendants joined issue on these replications.

The cause came on for trial before Cockburn, C. J., at the sittings in London after Hilary Term last, when the following facts appeared in evidence: The plaintiffs were the executrix and executors of William Warre Simpson, who in his lifetime resided at Abbey Wood in the county of Kent, and carried on the business of a Russia broker in Crown Court, Old Broad Street, London. The defendants are an insurance company legally incorporated, and established for the purpose of insuring against accidents, and carrying on business at No. 7, Bank Buildings, Lothbury.

On the 22d of January, 1851, Simpson effected with the defendants a policy in the terms set out in the declaration; and the premiums on that policy were regularly paid as they became due, in the years 1852, 1853, 1854, and 1855.

On the 27th of January, 1856, an accident happened to Simpson which caused his death on the 1st of February following. A question was raised at the trial, under the issues joined on the second and third pleas, whether *Simpson died in consequence of an accident

*275] within the meaning of the policy: but this was disposed of by

the finding of the jury in the affirmative.

Three days after Simpson's death, viz. on the 4th of February, his executors handed the policy to Mr. Crowdy, who was acting as their solicitor, with instructions to take the necessary steps for obtaining the amount from the company; and Mr. Crowdy accordingly on that day addressed a letter to their secretary, Mr. Young, as follows:

"17 Serjeants' Inn, Fleet Street, "February, 4th, 1856. "Sir,-Mr. W. Warre Simpson, of Cronstadt House, Abbey Wood, Kent, who was insured in your office for 2000l., by policy No. 8682, died on Friday last in consequence of a severe fall, and burns and other