49 Me. 282 | Me. | 1862
The opinion of the Court was drawn up by
The trustees in their policy of insurance promised and agreed "to make good unto the insured” all. such loss or damage, not exceeding the sum insured, as shall happen by fire, &c., "the said loss or damage to be paid within sixty days after due notice and proof thereof, made by the insured in conformity to the conditions annexed to this policy. At the time of the service of the plaintiff’s writ on the trustees, neither notice nor proof of the loss, in conformity with the conditions of the policy, had been given.
The preliminary proof required by the policy was a condition precedent to the right of the insured to recover. "It was,” remarks Weston, C. J., in Leadbetter v. Etna Ins.
It was doubtful, then, if ever a liability would attach. The contingency is not of proving a case, but of ever having one to. prove, — of there ever being a time when the insured would have a right of action.
■ By R. S., 1857, c. 86, § 55, "no person shall be adjudged trustee by reason of, any money or other thing due from bim to the principal defendant, unless, at the time of the service of the writ upon him, it is due absolutely, and not upon any contingency/” The contingency under this section, as settled in Stone v. Dwinel, 30 Maine, 384, "is not a mere uncertainty as to how the balance may stand between the principal and the supposed trustee; but it is such a contingency as may preclude the principal from any right to call the supposed trustee to settle or account.”
Exceptions overruled. — Trustees discharged.