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ing to its real meaning, and in that case the plea must contain three allegations: (1) the policy provided that if the insured did so-and-so, the company should have the right to elect to rescind it, (2) the insured did so-and-so, and (3) thereupon the company elected to rescind. Without the third allegation, the plea would be manifestly bad, for, until such election, the policy remained unaffected.

8. According to present methods, the insured, instead of quarreling with the company's plea, assents to its sufficiency; agrees that the policy had been "forfeited" (without the right of election having been exercised); and replies that the company "waived the forfeiture." But that is wrong, for without an election by the company (which the company has not alleged), the policy has remained unaffected, nothing has happened, and there is nothing to "waive." The policy is canceled, if at all, by the act of the company by the exercise of its election - and not by the act or omission of the insured..

9. If the company pleaded properly

made the three allega

tions the issue which it would tender would be whether or not it had elected (as it alleges) to rescind the policy. And to that there could be no thought of replying "waiver of forfeiture." The plaintiff would join issue, and, upon the trial, all those circumstances which are now said to be "waivers of forfeiture" would be urged as evidence of election to continue the contract.

10. The effect upon the onus of proof is obvious. The assumptions at present being that the policy has become canceled ("forfeited") by the act of the insured (instead of, as in truth, by the election of the company), and that the only way that the insured can obtain judgment is by showing "waiver of forfeiture" by the company, the onus is upon him to prove (1) some act of "waiver," (2) by somebody who had authority for the company to "waive" proof which the company, by the terms of its policy, has endeavored to make impossible. On the other hand, if the company must plead not only (1) the clause in the policy, and (2) the breach by the insured, but also (3) "that thereupon the company rescinded the policy," the onus is on the company to prove (1) election, (2) by someone authorized to elect.

II. And now, with reference to the view that the application of all this to

"a case where the breach of condition occurred, or was first known to the insurer, after the loss, and where there was no possible prejudice to the plaintiff in the defendant's failure to act, is not only novel but against authority."

Two cases are cited by the REVIEW commentator.3 In neither of them is there any reference to election, but they may be referred to in elucidation of some of the foregoing points. They are cases in which the mere retention of unearned premiums (under circumstances somewhat similar to the South Carolina case) was held not to affect the right of the company to rely upon forfeiture caused by breach of some condition. In one of them, a California court said:

"Nor can the mere retention of the premium after the loss has occurred, and where the liability is steadfastly denied, constitute either a waiver of the defense or an estoppel. To constitute such a waiver or estoppel by the action or non-action of the insurer, after the loss, it is essential 'that one party should have relied upon the conduct of the other, and been induced by it to put himself in such a position that he would be injured if the other should be allowed to repudiate his action.""

That is certainly true as to estoppel. As to "waiver," I know very little as will appear in a few minutes. But let us apply election. The clause providing for the company's right of election is not limited to a period prior to loss. Nothing in it suggests that the company's right to rescind terminates with the fire. Its right commences with knowledge of the fact giving the right to elect, and that, in the case in hand, was after the fire. And, observe, it is only by the exercise of the company's right to elect that it can escape payment. The policy furnishes no other ground of defence. There is no provision for "forfeiture" in it.

12. Moreover, if it be true that election has no application after the loss, neither has forfeiture or "waiver." For either the clause providing that the policy shall be void, etc., is, or is not, in force after the loss. If it is, it provides for election, and the right to elect therefore exists. And if it is not in force, then the only ground upon which forfeiture can be suggested has vanished.

13. Of "waiver," all I know (or, rather, believe) is that, apart from what the old books tell us about a pursued thief throwing

3 Ætna Ins. Co. v. Mount, 90 Miss. 642, 44 So. 162; Goorberg v. Western Ass. Co., 150 Cal. 510, 89 Pac. 130.

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away the stolen goods, every case of "waiver" may be put under one or other of four headings - Election, Estoppel, Contract, and Release. "Waiver" in insurance cases is sometimes estoppel, but almost always election. When you "waive" protest of a note, that is contract. When you "waive" a clause in a contract, that is either a new contract or estoppel. When you "waive" a right of action, that is release, or contract, or nothing at all.

14. The word "waiver" is as useful and as misleading as is "suction" in physics; and just as, apart from such other forces as atmospheric pressure, muscular action, flow of water, etc., there is no such force as suction, so there is not in law any such concept as "waiver," apart from the subjects above mentioned.

15. “Waiver" ought not to be confused with these other subjects. For, if it is anything at all, it is a purely unilateral act, its favorite definition being "an intentional relinquishment of a known right"; whereas effective legal action in the other classes of cases is always, at the least, bilateral. For example, relinquishment of a right to sue for a debt will not be effectual unless it amounts to a release, or is embodied in contract, for both of which the coöperation of another party is necessary. For the somewhat general confusion of "waiver" with estoppel there is no excuse. An example of it appears in the last of the above quotations, and the digest headings are "Waiver or Estoppel." But waiver, if anything, as has been said, is unilateral; whereas for estoppel there must be conduct by one party, acted upon by somebody else. Election is based upon contract. And contract is, of course, at the least, bilateral.

16. My article of some years ago (that to which the commentator referred) proceeded somewhat upon the same lines as the present. Since that time the Indiana courts have adopted the views there advocated. They hold that the company must plead not merely (1) the condition in the policy, and (2) breach by the insured, but also (3) "that thereupon the company elected to cancel the policy." In the judicial opinion in one of the cases my article was referred to in this way:

"The misuse of the word 'waiver' in this connection is clearly shown by a recent writer in an illustrative article: Waiver in Insurance Cases (Ewart), 18 HARV. L. REV. 365.”4

4 Modern Woodmen, etc. v. Vincent, 40 Ind. App. 711, 714, 80 N. E. 427, 429 (1907).

17. I have prepared for the press a dissertation with the title "Waiver distributed into Election, Estoppel, Contract, and Release," but four publishing firms have declined it. It is said to be "highly meritorious," and so on, but it is only 350 pages, and a small book is as bothersome as one yielding larger returns. The encyclopedias and the stenographers are rapidly depriving lawyers of any claim to be members of one of the learned professions. John S. Ewart.

OTTAWA, CANADA.

IT

PROPERTY IN CHATTELS

III

PROPERTY IN THE BAILEE

T was hard for the lawyers of the Year Books to reconcile themselves to the use by the bailee of the general writ of trespass. The goods which had been bailed were the goods of the bailor and not his, and it was hard for them to allow him to allege that "his goods" had been taken. They urged that he should have a special writ in custodia sua, but those in Chancery would give no such writ.' The general forms of trespass were hardening 2 and the bailee could no longer count in the natural way that had been possible in the time of Bracton. There are numerous examples of appeals in his time where the appellor did allege, not that the goods were "his," but that they were in his custodia.3

If we are to judge from Bracton's text and the case law of his time it was necessary for such an appellor to allege in addition that he had entered into an agreement to be accountable for the goods,* and we have one case 5 where Bracton says the appeal was not allowed because no such allegation was made. The common allegation was that the appellor had entered into an agreement with his lord, and evidently had in mind the case of a servant or villein,7 and it has been supposed that the effect of such an agreement was to make the servant a bailee, and that in the case of one who was not a servant no such allegation would have been neces

8

1 Y. B. 48 Edw. III, 20-8; Y. B. 11 HEN. IV, 17–39, 23-46.

2 See supra, pp. 382, 392.

SEL. PL. CR. (S. S.), pl. 126; BRAC. No. BK., pl. 723, 824, 1664; BRAC. (TWISS) fol. 146.

BRACTON & Azo, pp. 179, 183; BRAC. (TWISS), fol. 103 b, 146; SEL. PL. CR. (S. S.), pl. 88, 126.

5 BRAC. NO. BK., pl. 1664. See supra, p. 512.

Twiss, fol. 146.

7 See supra, n. 4.

Such seems to have been Professor Ames' opinion. He cites the two cases from the SEL. PL. CR. (supra, n. 4) as involving bailees, History of Trover, 3 SELECT ESSAYS, 424, n. 4. And see ibid., p. 425, n. 6, 7.

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