if anything, rather a partial witness. In order fairly to estimate what has been and what still remains to be done, we must first give an outline of the original scheme. The canal, as all know, is to extend from Port Said on the Mediterranean to Suez at the head of the Red Sea, a course of about ninety-six miles. Its dimensions, as generally proposed are:--Surface width, 260 feet; depth, 26 feet; but, according to Colonel Merewether, the width must have been reduced to 195 feet. As regards length it appears that the canal has been partially made from Port Said to Ismailieb, a distance of forty-eight miles, or just one half the distance across the Isthmus. Below Ismailieb, onward toward Suez, “the canal may only be said to be now fairly commenced." With respect to the engineering operations on that part of the line, the prospect is not encouraging, for "the first ten miles to Serapeum is like the portion through El-Gisr, very heavy, first through the edge of the Lake Timsah, then through high drift sandhills. These last are a great difficulty. Below Serapeum the line of canal passes through the Bitter Lakes. Between that and Suez, except at Chalon, ten miles from the latter place, there is little heavy work. At Chalon, rock has been met in the bed which has to be removed by blasting."

Turning to the northern portion, we find that for the first nine miles from Ismailieh, running through the high ground of El-Gisr, the canal is excavated to " about half its future complete width." Beyond that, and the whole way to Port Said, "there are two channels, each about thirtyfive feet, or one third of the complete width, the centre portion being left for the present. This is to allow of one channel being deepened by dredging, while the other is used for traffic. Openings are left at intervals through the centre part in order that the dredges may change channels as required. The average depth throughout is at present only seven feet."

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The works at Port Said, though progressing, are still in a very backward state. 'Eight dredges are at work inside the harbor. What earth is not required for excavation () or block-making, is carried by steam lighters out to sea in a north-easterly direction, whence there is no fear of its being returned. There are two side basins on the west, within the port, for shipping. Much has been dredged out, but still nothing compared to what has to be done. Small steamers run inside now, but large vessels have to lie off in the open road. The depth in the port has to be made over thirty feet."

Taking the foregoing as a correct statement of what has hitherto been done, it is clear that at least two-thirds of the original scheme remain to be accomplished, and that after a lapse of seven years, and an outlay to be reckoned by millions. Colonel Merewether may be correct in his opinion "that there are no physical difficulties to prevent the completion of the canal provided money is forthcoming;" but his anticipation that "even then it can scarcely be ready before five more years have passed" appears to exhibit some credulity. He adds, "Whether the returns will prove remunerative to the shareholders time only can prove." In all these points, however, the projectors seem to entertain the same unswerving confidence. Ismailieh is described as a perfect oasis in the surrounding barren wilderness, and its municipal divisions as quite cosmopolitan. "There is the French quarter, the Greek quarter, Arab quarter, and miscellaneous ;" and for conflicting creeds, "a Roman Catholic Church, Greek Church, and

Mussulman Mosque." Anglicanism and Protestanism are still unrepresented there. A small steamboat leaves Ismailieh for Port Said every day at 6 A.M., a similar boat starting at the same time from Port Said. The distance from point of embarkation is forty eight miles, done in eleven hours, including one hour for breakfast at Kantara. The boat is about fifty feet long by 9 feet broad, propelled by one screw astern, driven by a highpressure engine set in the middle. In the forepart are two compartments for first-class passengers, each holding eight in tolerable comfort. Astern are two similar places for second-class passengers.

COMMERCIAL LAW.-No. 32.

FIRE INSURANCE.

(Continued from page 269, vol. 54.)

THE CONSTRUCTION OF POLICIES AGAINST FIRE.

The rules of construction are generally the same in reference to fire policies as to marine policies. It is sufficient if the words of the policy describe the persons, the location, and the property, with so much distinctness that the court and jury have no difficulty in determining their identity with a certainty which prevents any real and substantial doubt.

In the construction of this as of other contracts, the intention of the parties is a very important and influential guide; but it must be the intention as expressed; for otherwise, a contract which was not made would be substituted for that which was made; and evidence from without the contract would be permitted to vary and to contradict it. Thus, where stock in trade, household furniture, linen, wearing-apparel, and plate were insured in a policy, the court held that the term "linen " must be confined to "household linen," and would not include linen drapery goods purchased on speculation. In a case where the policy required that the houses, buildings, or other places where goods are deposited and kept, shall be truly and accurately described, and the place was described as the dwelling-house of the insured, whereas he occupied only one room in it, as a lodger, this description was held sufficient.

It was held in another case, that the insurance by an inn-keeper against fire of his "interest in the inn and offices," does not cover the loss of profits during the repair of the damaged premises. And in another, the words "stock in trade," when used in a policy of insurance in reference to the business of a mechanic, as a baker, were held to include not only the materials used by him, but the tools, fixtures, and implements necessary for the carrying on of his business; and the words in question were held to have a broader application to the business of mechanics than to that of merchants.

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Where the plaintiff took out a policy of insurance against fire, on his goods, stock in trade, &c.," the policy was held to cover goods in stores, bought on joint account, and sold for the mutual profit of the insured and

another person, the former being also in advance on the adventure. An application by a tenant of a building during one year, for an insurance on "his building," is a good description. A policy on an unfinished house covers materials got out for and deposited in it, but not materials got out for it and deposited in another building.

A policy upon wearing-apparel, household furniture, and the stock of a grocery, covers linen sheets and shirts actually laid in for family use, if exhibited at the preliminary inspection; and such as were laid in for sale or traffic in the usual way, in the store; but not such as, being smuggled, were concealed and intended for secret sale.

If it appears by clear and positive evidence that the written contract does not express the actual and certain agreement of the parties, by reason of an accidental mistake or omission of phraseology, a court will correct this mistake, and treat the policy as reformed accordingly. We are not aware, however, of any material difference in this respect between fire policies and marine policies, and the law on this subject in relation to the latter has already been stated. And the same remark may be extended to the rule respecting the admission, as a part of the contract, of a memorandum on the back of the policy, or attached to it by a wafer, and neither referred to in the policy itself, nor signed by the insurer.

There is, however, one very important difference between contracts of fire insurance, and those of marine insurance, as usually made. It is a general rule with our mutual insurance companies, and not unfrequently with stock companies, to require that an application shall be made in writing; and this written application is after a peculiar form, prescribed by the rules. It always contains certain definite statements, which relate to those matters which affect the risk of fire importantly. In each form of application sundry questions are put, which are quite numerous and specific, and are those which experience has suggested as best calculated to elicit all the information needed by the insurers, for the purpose of estimating accurately the value of the risk they undertake. Specific answers must be given to all these questions. And this application, with all these statements, questions, and answers, is expressly referred to in the policy, and made a part of the contract; and a distinct reference to such a paper might of itself incorporate it with the contract, without any words declaring it to be a part thereof, if this reference imported that the contract was based upon the paper. If such a paper be referred to, the court will inquire into the purpose of the reference; and it has been said, that any conditions so referred to would be taken to be a part of the policy; but that the application itself was merely for the purpose of describing and identifying the property.

It is common to state in the printed part of the formal application, that it is made on such and such conditions; and these usually follow those statements which are deemed the most material in estimating the risk. These would be considered as express conditions, and, therefore, the substantial truth of all of them is a condition precedent to any right of indemnity in the insured party. By the legal phrase condition precedent, is meant a condition which must be fully complied with before the contract can take effect. Hence, if any of these statements were false, the policy would be void.

Sometimes there is no distinct application in writing, but the policy it

self states the facts relied upon. For this purpose it contains many blanks, which are filled up according to the circumstances of each case. It may happen that what is written in these places may be inconsistent with what is printed; and then it is a general rule that what is written prevails, as that is more immediately and specifically the act of the parties, and may be supposed to express their precise purpose better than the printed phrases which were prepared without special reference to any particular case. But this rule would not be applied where it would obviously operate injustice.

It is also unusual in fire insurance to put upon the policy itself a scale of premiums, as calculated upon different classes of buildings, of stocks in trade, or other property, in conformity with what is thought to be the greater or less risk of fire in each case. This is a matter of special importance; and if a statement were made by an applicant which put his building or property into a class of which the risk and premium were less than for the class to which the building or property actually belonged, and in that way an insurance was effected at such less premium, the policy would undoubtedly be void, even if the false statement were made inno cently.

When certain trades or occupations, or certain uses of buildings, or kinds and classes of property, are enumerated as "hazardous," or other, wise specified as peculiarly exposed to risk, the rule, The expression of one thing excludes what is not expressed, is applied, and sometimes with severity. This is better illustrated by marine insurance. Thus, in a case in New York, precisely in point, dried fish were enumerated in the memorandum clause as free from average, and "all other articles perishable in their own nature." It was held that the naming of one description of fish implied that other fish were not intended; and that the subsequent words, "all other articles perishable in their own nature," were not applicable, and did not repel this implication. The same rule would be applied, for the same reason, and in the same way, to cases of fire insu

rance.

If the printed conditions represent one class of buildings, or goods, or property, as more hazardous than another, it would not be competent for the insured, whose property was of that kind, to prove by other testimony that it was not more hazardous in fact. Moreover, a description of the property insured, as it is a description for a contract on time, is held to amount to an agreement that the property shall continue within the class where it is put, or at least shall not enter into another that is declared to be more hazardous during the operation of the policy. There must, however, be a rational, and perhaps a liberal construction of this rule. Thus, it does not apply where a single article, or one or two are kept in a store as part of the stock of goods, although that article, as cotton in bales, is among those enumerated as hazardous. So if the "storing of spirituous liquors" is prohibited, the keeping of wine or brandy in a private house for consumption, or even for sale by retail to boarders, would not discharge the insurers.

In New York it was held that where oils and turpentine, which were classed among hazardous as extra-hazardous articles, were introduced for the purpose of repairing and painting the dwelling insured, and the dwelling was burned while being so repaired, the insurers were

liable. But if the building is generally appropriated to a more hazardous occupation than the proposa's or the policy indicate, or if the jury find that the introduction of these goods materially increased the actual risk, evidence would be received as to the intention of the parties to the contract. And the true meaning of the contract and the intent of the parties would be considered. Thus, where the "storing" of certain goods was prohibited, as "hazardous," it was held that the having a pipe or two of such articles in the cellar, from which smaller vessels in the store were replenished, did not come within the meaning of the word "storing in the policy, any more than would the keeping of such articles for home consumption in a dwelling house insured by a similar policy. So a description of a house as "at present occupied as a dwelling-house, but to be hereafter occupied as a tavern, and privileged as such," is only permission that it should be a tavern, and creates no obligation to occupy and keep it as a tavern on the part of the insured. But if the language is, " to be occupied as so or so, but not" in some other certain way, this restriction is a part of the bargain; and if the building is so occupied, the insurers are discharged.

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So if the premises are described as "a private residence," the insurance is not avoided by the fact that the occupants moved out of the house leaving it vacant, and not the "residence" of any one, unless the jury find that the risk was thereby materially increased. But where the property was represented as a tavern barn," and the insured permitted its occupation as a livery stable, an expert (so the law calls a witness having experience and skill on a particular subject) was permitted to testify that a livery stable was materially more hazardous than a tavern barn. And on this ground, the policy was held to be discharged, although the keeper of the livery stable was removable at the pleasure of the insured. Where a building insured by a company was represented, at the time of effecting the insurance, as connected with another building on one side only, and before the loss happened it became connected on two sides, the policy was held not to be avoided unless the risk thereby became greater.

The general subject of alterations of property under insurance against fire is not without difficulty. On the whole, however, we are satisfied that mere alterations, although expensive and important, do not necessarily and of themselves avoid the insurance or discharge the insurers; but that they have this effect, if they are found by the jury to increase the risk materially; or if they are specifically prohibited in the policy; for this amounts, in the second case, to an agreement by the parties that they shall be considered as increasing the risk, and in the first, in a promise by the insured that they shall not be made.

Still other questions may arise where material alterations are made, all of which are not easily disposed of. The following are instances: Suppose one gets his dwelling-house insured for seven years, truly describing it as having a shingled roof. After two or three years he determines to take off the shingles, but says nothing to the insurers about it. If he now puts on slates, or a metallic covering which does not require soldering, he does not increase the risk; nor is the work of putting on the new covering hazardous, and we see no grounds for its having any effect on the policy. But suppose the new metallic covering is secured by soldering.