home. Thus, where the insured had moved out for six months leaving only a few pieces of furniture in the house and occasionally slept there, the policy was held to be voided (55).

§ 78. Same: Single buildings or series of buildings. Another important distinction in connection with this clause turns on whether the property covered by the insurance is insured as a single building, or as a series of separate buildings. If the former is the case, the question of whether this condition is violated is settled by looking at the structure as a whole. In the latter case, each separate building must be judged on its own merits. This distinction is well brought out by two cases. In the one case, the property was insured as "a ten tenement frame block." Eight of the tenements were vacant, but the policy was held good for the reason that the structure as a whole could not be said to be vacant and unoccupied (56). In the other case, a policy was for "eight double house blocks at $187 per block." In that case the policy was held bad as to each of the double houses which were vacant and unoccupied, and not saved as to those by the fact that the others were still in use (57).

§ 79. Non-user of manufacturing establishments. This clause is very similar in its nature and character to the clause last examined. The New York Standard policy provides that it shall be void "if the subject of insurance be a manufacturing establishment and it cease

(55) Insurance Co. v. Hamilton, 82 Md. 88.
(56) Harrington v. Insurance Co., 124 Mass. 126.
(57) Insurance Co. v. Tilley, 88 Va. 1024.

to be operated for more than ten consecutive days" (58). The same construction has been put upon this clause. A mere cessation of work, even though continued for more than ten days, will not void the policy if it is only temporary in its nature. Thus where a furniture factory was closed down because of the prevalence of yellow fever, and remained in that condition for more than ten days, the policy was held not to be broken (59). So, where a saw mill was shut down for more than ten days because of the illness of the superintendent, this was held not to be a violation of the clause under consideration (60).

§ 80. Illegality. There is one implied condition in fire insurance, as in all, based upon public policy, namely, that the insurance shall not be in furtherance or protection of an illegal act. It is not meant by this statement that the mere fact that one illegal act, for example, takes place in the structure insured violates the policy. Thus, where a building was insured and it was used on one occasion as a gambling place in violation of the statute prohibiting gambling, the policy was held not to be voided for this reason (61). But if the purpose of taking out the policy is primarily the protection of an illegal business, as in a case where insurance is taken out on liquor which is kept for sale in violation of the state statute prohibiting the ownership or sale of intoxicating liquors, the policy will be unenforceable (62). And it would probably be (58) App. E, 1. 42.

(59) Poss v. Assurance Co., 7 Lea (Tenn.) 704.

(60) Ladd v. Insurance Co., 147 N. Y. 478.

(61) Boardman v. Insurance Co., 8 Cush. (Mass.) 583.

(02) Kelly v. Insurance Co., 97 Mass. 288.

held that, even though the policy was originally taken out for a lawful purpose, if in fact the character of the business is changed so that the main purpose of it becomes illegal, the policy would be void under those circumstances.

SECTON 3. FIRE INSURANCE: CONDITIONS APPLICABLE AFTER LOSS.

§ 81. Language of policy. It is to be noted that the New York Standard policy does not in so many words make the requirements on the insured after loss conditions of the policy. The New York Standard policy provides (63) that he shall perform certain acts, among these the furnishing of the proofs of loss, within sixty days after the fire. Further down in the policy (64) it provides that the company shall not be liable to action unless these foregoing requirements have been satisfied by the insured. Just what the effect is on the rights of the insured under such a policy, if he fails to furnish the proofs of loss within sixty days, is a matter of dispute. The courts of New York and of some few other states have held that the total effect of the language of the policy is to make the requirements, as to what the insured must do after loss, conditions, on the performance of which, within the time specified by the policy, his right to recover depends, and if he does not so perform them the policy is void (65). Most of the states, however, going on the general principle already referred to, that the court will not make the language of the policy that of forfeiture, (63) App. E, 11. 142-168.

unless it is perfectly clear that such is the intention of the parties, have held that any failure on the part of the insured to present his proofs within sixty days does not avoid the policy, but simply postpones the right of the insured to bring his action until he has presented his claim; and, inasmuch as by another clause of the policy (66) the insured must bring his action within one year after fire, that this substantially protects the company (67).

§ 82. Immediate notice of loss. The New York Standard policy requires the insured after fire to give "immediate notice of loss to the company" (68). This means simply that the insured must give it notice of the loss, as soon as it is reasonably possible under the circumstances for him to do so. Thus, after the great fire in Chicago in 1871, when all business was in great confusion, it was held that notice given five weeks after the fire was "immediate" under the circumstances (69). In another case, where there was sickness and great difficulty in making up the inventory, it was held that six weeks was not too long. On the other hand, in one case where there was no reason why the insured should not have immediately sent in his notice of loss, it was held that a delay of 48 hours was a violation of this requirement of the policy (70).

§ 83. Proof of loss. The above considerations do not apply to that language of the policy that requires "proof of loss to be furnished within sixty days after the fire"

(66) App. E, 1. 217.

(67) Hall v. Insurance Co., 90 Mich. 403.

(68) App. E, 1. 142.

(69) Insurance Co. v. Gould, 80 Ill. 388.

(70) Brown v. Assurance Co., 40 Hun (N. Y.) 101.

(71). This being a definite fixed period must be conformed to by the insured. The sixty days, however, does not begin to run until the fire is out and the ruins sufficiently cooled so that they can be examined (72); and it is enough if the proof of loss be mailed within sixty days, even though it be delivered later (73).

§ 84. Certificate of loss. The New York Standard policy provides that the insured shall upon the request of the company "furnish a certificate of the magistrate or notary public living nearest to the place of fire" (74). The courts have held, as to this requirement, that the difference of a few feet would not violate the requirement, where both magistrates lived substantially the same distance from the place of fire. But if the magistrate whose certificate is obtained is substantially farther away, it does not satisfy the requirement (75). Nor is it any excuse that the nearest magistrate refused for any reason to give the certificate (76). Some jurisdictions have held that this requirement is contrary to public policy and have consequently refused to give it any recognition (77).

§ 85. False swearing. The New York Standard policy provides that it shall be void, "in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether

(71) App. E, 1. 148.

(72) Wall Paper Co. v. Insurance Co., 175 N. Y. 226. (73) Insurance Co. v. Zeitinger, 168 Ill. 286.

(74) App. E, 11. 163-168.

(75) Gilligan v. Insurance Co., 20 Hun (N. Y.) 93.

(76) Johnson v. Insurance Co., 112 Mass. 49.

(77) Insurance Co. v. Norris, 100 Ky. 29.