was assigned to Sturges, who was without insurable interest in his life, the assured dying in less than a year after the assignment, say: "If the assignment from Haynes to Sturges were to be upheld as valid under the law, it would be virtually saying that the law authorizes mere wagering speculations, mere mercenary traffic concerning human life, and it would be opening the door wide and inviting to enter the most shocking crimes." See State v. Winner, 17 Kans. 298. The like rule has been enforced in Maine, in Mitchell v. Union Life Ins. Co., 45 Me. 104; in Missouri, in Singleton v. St. Louis Life Ins. Co., 66 Mo. 63; and in the United States Circuit, District of Missouri, by Judges DILLON and TREAT, in Swick v. Home Life Ins. Co., 2 Dill. 161; and in Illinois, in Guardian Mut. Life Ins. Co. v. Hogan, 80 Ill. 35. In Johnson v. Van Epps, 14 Ill. App. 201, the court (PILLSBURY, J.,) say: "Whether a contract of insurance is void, being within the prohibition of the law against gambling, depends not so much upon the extent or character of the interest or the want of interest in such beneficiary, as it does upon the intention of the parties in procuring such insurance." See, also, Langdon v. Union Mut. Ins. Co., 22 Am. L. Reg. (N. S.) 385, and note.

It is an equitable rule, however, that assignments of valid life insurance policies, although the circumstances attending such assignment are such that a court will refuse to enforce the same for the whole amount of the policy, for the reason that the transaction is, on its face, a mere speculation or gambling wager upon the life of the assured, are yet held valid in favor of assignees as to all sums actually loaned, with interest, and premiums and assessments paid by the assignee to preserve the vitality of the policy: Warnock v. Davis, 104 U. S. 775; Knickerbocker Life Ins. Co. v. Weitz, 99 Mass. 157; Cammack v. Lewis, 15 Wall. 643; Harley v. Heist, 86 Ind. 196. And this equitable right was enforced in favor of an assignee holding policies of life insurance as collateral in a transaction voidable for fraud: In re Leslie, L. R., 23 Ch. D. 552. And also where the assignment was partly void: Scobey v. Waters, 10 Lea 551.

And in other cases, a lien can be acquired upon policies by the payment of premiums under a contract with the beneficial owner, or where persons have advanced money to trustees for that purpose: Clack v. Holland, 19 Beav. 262; Todd v. Moorehouse, L. R., 19 Eq. 69. WILLIAM COLEBROOKE.

VOL. XXXIII.-97

RECENT AMERICAN DECISIONS.

Supreme Court of Massachusetts.

HINCKLEY v. GERMANIA FIRE INSURANCE CO.

The temporary illegal use, without a license, of property insured, if uncontem. plated at the time of taking out the policy, would not of itself, and as a matter of law, render the policy void during the whole of the rest of the time which it was to run. It would simply vitiate the policy during the time of the illegal use, and when such illegal use stopped, the policy would revive.

It is not the necessary meaning of the word "void," as used in policies of insurance, that it shall, under all circumstances, imply an absolute and permanent avoidance of a policy which had once begun to run. The meaning of the word is sufficiently satisfied by reading it as void or inoperative for the time being.

Where a license is granted to two persons under Pub. St. c. 102, s. 111, to keep a billiard or pool table, or a bowling-alley, for hire, it is available to each of them.

THIS was an action of contract upon a policy of insurance against fire upon a pool table and other saloon fixtures. At the trial in the Superior Court a verdict was ordered for the defendant, and the case reported for the consideration of the Supreme Court.

J. M. & T. C. Day, for plaintiff.

M. & C. A. Williams, for defendant.

The opinion of the court was delivered by

C. ALLEN, J.-The report does not state the grounds upon which the ruling rested, that the plaintiff was not entitled to recover. The defendants, in their brief, rely on various objections, which we have considered.

In the first place, the defendants suggest that there is certainly great doubt whether the license under which the plaintiff was doing business on the day when the policy was dated and delivered was of any validity, since this license ran to both brothers, Edwin and Herbert, though Herbert had ceased to have any interest in the place before the license was dated and issued. No authority is cited or reason assigned for so strict a construction, and we are of opinion that a license duly granted to two persons, under Public Statutes c. 102, s. 111, to keep a billiard or pool table, or a bowling alley, for hire, is available to each of them. This is not like a case where two persons seek to avail themselves of a license granted to only one of them.

It is then urged that, after the license had expired, the plaintiff

kept the insured property, in violation of law, from May 1st 1883, till the last week in June 1883. The policy was dated March 15th 1883, and the license then existing, expired May 1st 1883. The fire occurred on August 6th 1883, and it was conceded that there was no illegal use of the property after the last week of the preceding June, at which time the plaintiff ascertained that his license would not be renewed. The defendants rest their objection on two grounds: First, that the illegality and criminality of the plaintiff's act in respect to the injured property, vitiates the policy by operation of law, independently of any express provisions contained in the policy; and, secondly, that under a provision of the policy the right to recover was taken away. The authorities cited in support of the first proposition do not support it. In Kelly v. Home Ins. Co., 97 Mass. 288, the policy was on intoxicating liquors, which at the time of the insurance, and thereafter to the time of the loss, were intended for sale in violation of law. The policy never attached. There was never a moment when the liquors were not illegally kept, and all that the case decides is that goods so kept at the time when the policy issued, or at the time of the loss, cannot be the subject of a valid insurance. In Johnson v. Union Ins. Co., 127 Mass. 555, the facts were similar. The policy was on billiard table, balls, cues, &c., kept without a license at the time the policy was issued, as well as at the time of the loss. The ground of the decision in both of the above cases is stated to be "that the object of the assured in obtaining the policy was to make their illegal business safe and profitable; and that the direct and immediate purpose of the contract of insurance being to protect and encourage an unlawful traffic, the contract was illegal and void, and the policy never attached." The same facts existed in Lawrence v. National Ins. Co., 127 Mass. 557. In Cunard v. Hyde, 2 El. & El. 1, the cargo which was the subject of insurance was partly loaded on deck in violation of law, and while in that condition was totally lost.

In the present case, the plaintiff had a license at the time when the policy issued, and the policy, therefore, was valid when obtained. If it be assumed without discussion that the policy would cease to be operative during the time when the property was kept in use without a license, the question remains whether such temporary illegal use of the property has the effect to avoid the policy altogether or merely to suspend it during the continuance of such illegal use. There is nothing in the case to show that it was proved, as a mat

ter of fact, that the plaintiff at the time of taking out the policy, intended to make it cover any illegal use of the property. He may have expected to get his license renewed; or, failing in that, he may have intended to close the place where the property was used, as, according to his own testimony, in point of fact he did. Under this state of facts, we are of opinion that the temporary use of the property without a license, if uncontemplated at the time of taking out the policy, would not of itself, and as a matter of law, render the policy void during the whole of the rest of the time which it was to run. If there were any special or peculiar reasons why such absolute invalidity should be declared, they should be made to appear. In the absence of such reasons, such temporary and uncontemplated illegal use of the property should not be visited with so severe a penalty as the absolute avoidance of the policy. It does not appear that the defendants were or would be in any way injuriously affected thereby after such illegal use had ceased. They have the benefit of the temporary suspension of the risk, without any rebate of the premium. There is no hardship to the defendants in requiring them to show an actual injury, or else to avail themselves of the clause in the policy giving them a right to cancel it upon notice, and a return of a ratable proportion of the premium. There is no rule of law preventing the revival of a policy of insurance after a temporary suspension. "The doctrine that the risk may be suspended, and again revive, without an express provision for the purpose, seems to be within the strictest judicial principles:" 1 Phil. Ins. § 975. Accordingly, temporary unseaworthiness, if the ship has become seaworthy again, will not defeat the policy: 1 Phil. Ins. § 730. So as to other stipulations; as, e. g., that of neutral character and conduct: Id. § 975. And in Worthington v. Bearse, 12 Allen 382, it was held, on great consideration by this court, that if the assured in a marine policy temporarily parts with his interest in the property insured, and afterwards buys it in again, the policy will revive, if there are no express provisions making it void, and there is no increase of risk. As between the insurer and the assured, there is no reason why the former should be allowed to avail himself of a temporary illegal use like that which existed in the present case, unless it can also be shown that the subsequent risk was thereby increased, or the position of the insurer otherwise injuriously affected. And as a matter of general policy, it does not seem reasonable to impose upon the assured so severe a consequence

as the forfeiture of his policy, in addition to the penalty of $100, which the legislature have considered adequate as the maximum punishment for his offence against the public: Pub. Stat. c. 102, 8. 111.

It is further contended by the defendants that, however it might be under the general rule of law, the policy contained a provision making it void. In the standard form of policy established by the legislature, which was used in the present case, the matters avoiding a policy are enumerated. Omitting matters not here material, the provision is: "This policy shall be void *** if the insured shall make any attempt to defraud the company either before or after the loss; or if gunpowder or other articles subject to legal restrictions shall be kept in quantities or manner different from those allowed or prescribed by law; or if camphene, benzine, naphtha, or other chemical oil, or burning fluids shall be kept or used by the insured on the premises insured, except that what is known as refined petroleum, kerosene or coal oil may be used for lighting." In this Commonwealth, under the statutes for the regulation of trade, and providing for licenses and municipal regulations of police, there are a great many articles which, in a certain sense, may be said to be "subject to legal restriction." Dogs, fish, nails, commercial fertilizers, hacks and horses, in cities, may be referred to as examples. It may well be questioned whether, under the maxim noscitur a sociis, the clause in the policy above quoted ought not to be limited in its application to other articles of a character similar to gunpowder, the keeping of which may have a natural tendency to increase the risk. It would be rather a strained construction of this clause to hold that a policy should be void because an unlicensed dog was kept upon the premises; and yet such a dog, being subject to legal restriction, would be kept in a manner different from that allowed by law. It would not be sensible to give to these words the broadest construction of which they are susceptible.

But, irrespectively of this consideration, it is not the necessary meaning of the word "void," as used in policies of insurance, that it shall under all circumstances imply an absolute and permanent avoidance of a policy which had once begun to run; but the meaning of the word is sufficiently satisfied by reading it as void or inoperative for the time being. In Phil. Ins. § 975, it is said: "After it (i. e., the policy) has begun, so that the premium is be