Sir W. J. C.J.-The appeal in this case should be dismissed upon the ground that the action was instituted too late under a valid provision of the policy.
It is claimed that there was a waiver. It was not pleaded and, therefore, there is no issue upon which we could give judgment.
J.-I am of opinion that there is no foundation for this appeal.
The action is n a policy of marine insurance whereby the respondents insured the barque " Waterloo " for the sum of $5,000 for one year from the 25th of October, 1877, sailing from Quebec "on present voyage" on 26th October, 1877. The policy was effected by E. H. Duval on account of himself, loss (if aniy) payable to the appellant, (who was described in the policy as of the firm of Moses & litchell, 4 Grace Church street, London). The " Waterloo " sailed on the voyage from Quebec on the 26th October, 1877, did not arrive at her port of destination and was never afterwards heard of.
It is not disputed that the vessel was lost sometime before the 28th February, 1878, on which day she was posted at Lloyd's list.
The policy contained a provision in the words following:- This action was instituted on the 8th April, 1880. By their first peremptory exception the respondents set up the bar of the prescriptive clause already referred to. The plaintiff fyled general answers only to all the defendant's exceptions.
The cause being at issue, the parties went to enquete, and the action was afterwards heard before Mr. Justice Jett6 in the Superior Court.
The Superior Court dismissed the action with costs and an appeal from that judgment having been taken to the Court of Queen's Bench by the present appellant, that court affirmed the judgment of the Superior Court.
further appeal has now been taken to this V* court.
Only two points requiring notice were argued here. First, it was said that the conventional prescription provided by the clause already quoted had been Strong waived.
It is sufficient to refer to one conclusive answer to this contention.
The appellant cannot be admitted to insist on waiver in the state of the record before us.
If it had been intended to rely on this reply it should have been set up by a special answer to the exception pleading the prescription, but this was not done.
It is, therefore, out of the question now, in this second stage of appeal to consider this answer to the defence, even if it were sustained by the clearest and strongest evidence. It is sufficient then to say that it is not now competent to the appellant to raise this objection, and to this it may be added that there is not a tittle of evidence in support of the pretended waiver.
The only other point seriously urged in argument was the legal one that this prescriptive clause was void as against public policy. . It has over and over again been adjudged that a provision of this kind is valid and unimpeachable in English law-and no authority has been quoted to show that the French law differs in this respect from the English law;- on the contrary numerous French authorities show that the law of France as settled by a general consensus of legal authors as well as by the jurisprudence of the Court of Cassation, agrees with the law of England. The appeal is one of the most frivolous and ill founded which has ever come before this court and should be dismissed with costs.
J.-Concurred with Taschereau J. T.gpEREAU J.-This was an action g a policy of Marine Insurance. One of the conditions of the policy was that " all claims under this policy shall be void unless presented within one year from the date of loss."
The action was instituted more than two years after the loss. The company pleaded this concIN dition and the Superior Court, thereupon, dismissed the action.
The Court of Appeal unanimously confirmed that judgment, and the plaintiff now appeals to this court.
His appeal must be dismissed. would call it a frivolous appeal.
His first contention was that "prosecuted"
in the said policy does not mean "prosecution by a suit or action."
The appellant has not been able to cite a single authority in support of this contention. In the case of Carrazoay v. The Merchant's Mutual Ins. Co. (1) this very same point was raised and determined against the plaintiff. The appellant, secondly, argued that this condition is void under article 2184 of the Civil Code, which enacts that prescription cannot be renounced by anticipation, the only prescription against him recognized by law, as he contends, being the prescription of five years, under art. 2260 C.C. The question is now well settled, and the validity of such a condition perfectly well established. I need only refer to Cornell v. The Liverpool Ins. Co. (2); Armstrong v. Northern Ins. Co. Bell v. Hartford (4) ; Rousseau v. The Royal (5); Whyte v. Western in the Privy Council (6); and to Laurent (7) and Pouget, Dictionnaire des Assurances where all the French authorities are collected.
The enactmeut that prescription cannot be renounced by anticipation is an enactment in favor of the debtor and means simply, that (to apply it to the present case,for instance) if the company had stipulated that an action on this YOL. XV.]
policy should lie in case of loss at any time even after five years, the company upon being sued after five years 0* could plead this prescription, notwithstanding the stipulation to the contrary. But that the plaintiff should himself invoke the article to support the contention that he could not legally stipulate that the Ts r delay to prosecute should be shorter than five years seems to be a misconception of the article. The debtor cannot stipulate to enlarge the delay to prescribe, but the creditor may stipulate to shorten that delay. As to the waiver which the appellant attempted to rely upon, it is sufficient to say that there is no such issue raised on the record.
The appellant's only answer to the company's plea was a general replication. J. concurred.
Appeal dismissed with costs. Solicitors for appellant: Davidson 4* Ritchie. Solicitor for respondents: J. C. Hatton.
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