
    Christopher C. Cockerill v. The Cincinnati Mutual Insurance Company.
    A policy of insurance must be in writing.
    A verbal waiver of the forfeiture of a policy of insurance is not binding.
    
      
      A 'erbal agreement that a policy which has been forfeited by a transfer of the interest of the assured by judicial sale, that on repurchase by the assured of the property originally insured, the policy shall re-attach and continue in force during the unexpired term, must, whether regarded as a waiver of a forfeiture, or a verbal policy, or an agreement to continue the old policy, to have any binding force, be in writing.
    This is a, writ of error directed to the superior court of the city of Cincinnati.
    The action in the court below was assumpsit. The declaration was upon a policy of insurance, dated March 14, 1844, for one year, on two-thirds of the steamboat Mound City, in the sum of $3,500, the valuation being $10,000.
    The declaration, upon which the parties first went to trial, was in the usual form, averring generally interest in the plaintiff, seaworthiness, and loss within the time, and by the perils insured against, but not containing the special matter hereafter described. Tbe defendant pleaded the general issue; and during the trial the following state of things occurred, as shown by the bill of exceptions, a part of which is as follows:
    ^“In the course of offering the said testimony, it had appeared, that after the purchase by said plaintiff of his two-thirds of the said steamboat Mound City, at the city of New Orleans, in the month of February, 1844, the owners had caused her to be caulked and otherwise fitted to pass inspection, and had then sent her on a trip to St. Louis, where she had been judicially seized and sold to one Perrine, under the law of Missouri, on June 5, 1844, for a debt contracted by those who owned her prior to the purchase by said plaintiff of his said interest, and against his will; and then, in order lo prove the interest of said plaintiff at tbe time of said loss, said plaintiff offered to prove the following facts, to wit: That aftor the said judicial sale, and before the said loss, the said defendants were informed by said plaintiff of the said judicial sale, and asked whether they considered themselves any longer liable on said policy—to which they replied that they did not: that said defendants were then asked to give up the premium note, upon being paid the proportion thereof to the time of the said judicial sale, which the said defendants refused to do, but said to the plaintiff, that they would agree that if said boat should again come to be the property of the insured, eithor by purchase or compromise, during the life of the policy, the said defendants would waive any forfeiture arising from said judicial salo, and said policy should continue to the end of the time. That, in consequence of said agreement, said plaintiff did, shortly thereafter, to wit, on August 20, 1844, purchase from said Perrine the said steamboat Mound City, with her apparel, tackle, and furniture, and thereby became and was sole owner thereof at the time of said loss.
    “To the introduction of which offered testimony the defendants objected, and the court sustained the objection, and refused to admit the samo.” '
    Thereupon a juror was withdrawn by consent; and the plaintiff had leave to amend his declaration, which he did by adding a second count, containing the special matter above rejected, as follows:
    *“And the plaintiff avers, that after the making of the said insurance, and before the loss hereinafter mentioned, to wit, on May 24, 1844, at the city and county of St. Louis, in the State of Missouri, to wit, at the county aforesaid, the said boat, without the consent and against the will of the plaintiff, was seized by the sheriff of said St. Louis county, by virtue of sundry executions and orders of sale to him directed, from the St. Louis court of common pleas, and from the circuit court of the county of New Madrid, in the State of Missouri, and sundry judgments theretofore obtained against the said boat, and sundry persons, defendants, for claims existing against said boat, before plaintiff became a part owner of her, and of which he had no knowledge; and after due process had, said boat was, with her apparel, tackle, and furniture, sold and convoyed by said sheriff to one William M. Perrine, on June 5, 1844. And the plaintiff further avers, that after the said judicial sale, and before the loss hereinafter mentioned, to wit, on July 1, 1844, said defendants were informed by said plaintiff of said judicial sale, and asked whether they considered themselves any longer liable on said policy of insurance; to which they replied that they did not; and being then asked to abate the premium for so much of the year as l’emained after said judicial sale, they refused so to do; but at the same time agreed, that if said plaintiff would again become owner of said boat, either by pur. chase or compromise, they, said defendants, would waive any forfeiture of said insurance by reason of said judicial sale, and said policy should continue to attach to said boat until the end of said year, as if there had been no change of ownership.”
    Then follows the averment of repurchase, loss, etc.
    The first count, which still remained general, was afterward abandoned; and a general demurrer put in to the second, which demurrer was sustained; and the case comes up on the following assignment of errors:
    
    “And the said plaintiff now comes and says, that in the ^record and proceedings in the above-entitled cause, there [151 is error in this, to wit:
    “ 1. The court erred in refusing to admit the testimony offered by the plaintiff, as set forth in the bill of exceptions.
    “2. The court erred in rendering judgment upon the demurrer for the defendants, when it should have heen for the plaintiff.”
    Walker & Kebler, and Henry Starr, for the plaintiff in error:
    Two questions are presented for the consideration of the court, which we shall consider in the reverse order of the assignment of errors.
    
      First, the judgment upon the demurrer should have been for the plaintiff, and not for the defendant. The facts specially averred are these: After the insurance, and 'before the loss, the boat was judicially seized and sold for. debts contracted by a prior owner. Whereupon the plaintiff, supposing the policy at an end, applied for a pro rata return of premium. This the company refused; but verbally agreed with the plaintiff that if he would repurchase the boat they would waive any forfeiture, and the policy should continue to attach as if nothing had happened. And in consequence thereof, he did repurchase the boat, and was owner at the time of the loss.
    If upon these facts the plaintiff can not recover, it must be on account of some strictly technical objection, for every equitable consideration is in his favor; and if the defendant were a man, his conduot in refusing to pay this insurance would subject him to the scorn and contempt of all honorable and honest men. Let us then notice these technical objections.
    1. It is said that the judicial sale put an end to the policy; and this once done, nothing could revive it. It was a dead thing. A new policy only could effect a now insurance.
    Not so. The policy was upon the boat, which still lived; *and, by one of its own stipulations, this policy might have been assigned to the new purchaser, with the assent of the company. This shows that it did not become extinct by the act of sale. We find no precedent exactly in point, but there is a very close analogy in the instance of deviation, which forfeits the policy, unless the insurer agrees to waive it, which he may do. See 1 Phil, on Ins. 572; 1 Sumner, 232; 3 Johns. 142. So here. The company have agreed to waive the forfeiture for the consideration of repurchase, and have thus reinstated the policy.
    2. It is said that this agreement, to be binding, must be in writing; that it is tantamount to an original insurance, which can only be in writing.
    We deny both propositions. We know of no law requiring a policy of insurance to be in writing, unless it come within the statute of frauds, which this does not. But if the law were so, we have complied with it. Our policy was in writing, and still exists. The parol agreement was not a new insurance, but the reinstatement of an old one; and this may be done without even words. It may be done by acts. It is nothing more than the waiver of a forfeiture.
    3. But it is said that granting the verbal agreement to be valid, the suit is wrongly .brought. It should be on this verbal agreement.
    We answer that it is brought on both, as parts of one whole, the declaration is special, and sets forth the whole case. ' We rely upon the old policy, and show its continued existence by special averment. We liken it to a lease forfeited,for non-payment of rent or other cause,'and the forfeiture waived by the lessor. Hero the lease is reinstated to all intents and purposes, and if there be suit upon it afterward, the count is upon the lease, as if nothing had happened.
    Wo also liken it to the case of an indorser waiving protest or notice. This is not regarded as a new contract, but a revivor of the old one, and the count is upon the original note. 12 Mass. 56; 5 Pick. 444.
    *2. The court erred in ruling out the evidence as stated in the bill of' exceptions. The declaration was originally upon the policy alone, without the special averments of a judicial sale, agreement to waive forfeiture, and repurchase. These facts the plaintiff offered to prove, but the court refused. This, we say, was error. We find no precedents exactly in point; but the instances last above adverted to, of a waiver of forfeiture by lessor,, and of notice by the indorser, would seem to be conclusive.'
    Tart, Key & Mallon, for defendant in error:
    The first point made by the plaintiff’s counsel is, “ that the company have agreed to waive the forfeiture for the consideration of repurchase, and have thus reinstated the policy.”
    To sustain this point, the counsel for plaintiff, admitting that they “find no precedent exactly in point,” claim that there exists- “ a very close analogy between this case and the case of a deviation, which forfeits the policy, unless the insurer agrees to waive-it, which he may do.”
    To this point of analogy, the plaintiff’s counsel cite 1 Phil, on Ins. 572; 1 Sumn. 232; and 3 Johns. Cas. 142.
    On this point, we say :
    1. That the analogy, as claimed by the plaintiff’s counsel, does-not exist. The termination of the risk, originally assumed, was not a matter in the nature of a forfeiture. The contract was to indemnify the party insured against loss or damage that might happen to the interest which the insured had in the boat. When that interest ceased, the risk ceased, because no damage could' possibly happen to that which had no existence. A deviation is,, where there has been a variation from the usual course of the voyage, while the interest remains, and is still liable to the perils of the seas. Now, if the insurer waives the deviation, in writing, the insurance may continue; or such is the doctrine claimed from the authorities cited.
    Phillips, in the passage referred to, says: “The insurers *may waive taking any advantage of deviation, which must be done in writing to render it binding, at least if it be after the deviation, and after the policy is subscribed.”
    2. If we grant the analogy to forfeiture, by deviation, as-claimed, it leaves the plaintiff in no better case than before; for the forfeiture, by deviation, is not waived effectually except by writing. By the authorities cited by the plaintiff’s counsel, a verbal waiver has no force. The waiver relied on here is verbal merely.
    3. There is no such thing as that which the plaintiff claims this-to be, in all the authorities, nor in any of the usages of insurance., A waiver, the effect of which shall be to reinstate a policy, the-.subject of which, viz., the interest insured, has actually expired ; or, to use language more intelligible, to transfer a policy from an ■old to a new and different interest; such a waiver is nowhere described in the books of insurance. This is admitted by the counsel for the plaintiff, and is of itself a circumstance tending •strongly to show that there is no such law.
    II. That this agreement relied on by the plaintiff is a contract •of insurance; and that a contract of insurance, to be binding, must be in writing. This the plaintiff’s counsel deny, and recognize “no law requiring a policy of insurance to be in wilting, unless it come within the statute of frauds.”
    A policy is described (1 Phil. Ins. 2) as the instrument containing the terms of the contract of insurance. Mr. Phillips speaks ■of it as a bond of indemnity. “As to the essential part of this •contract,” he says, “ it does not differ from a bond of indemnity, ■or a guaranty of a debt, since the obligor or guarantor takes upon himself certain risks, to which the obligee or creditor would otherwise be exposed. The only difference is in names, and the form of the instrument,—the consideration for an insurance being always called a premium, and the instrument containing the terms of the contract, a policy, which is usually made in a form peculiar to this species of contract.” He says (same page), “ the ^'-instrument by which the contract is made, is called a policy.”
    
    The contract of insurance is uniformly described as a policy, •and without a policy there is no insurance known or treated of in the books. In like manner a policy without writing is not known ^anywhere. The term policy implies a written instrument. A verbal policy of insurance would be an altogether incongruous ■and incomprehensible idea. A verbal bill of exchange would be •a no more strange and unheard-of instrument than a verbal policy of insurance. There is no statute of frauds which requires ¡that bills of exchange should be in writing, and yet, by the commercial law, the liabilities of the several parties to a bill of exchange must be evidenced by writing. By the same commercial law is the contract of insurance, which falls peculiarly within the scope of the law merchant, evidenced by writing. It is uniformly •spoken of in the text books as a written instrument.
    Duer (1 Duer’s Ins. 60, 61, etc.) says: “Insurance, as a branch •of the law merchant, we have already seen, does not depend (Solely on the rules of our municipal law, but upon questions not eettled by positive decisions, is governed by the general usage of the commercial world. Hence, I adopt the opinion that the general and uniform practice of merchants from the earliest times ought to be considered as evidence of the legal necessity of a written contract, with the same propriety that a bill of sale is held to be necessary by the universal maritime law to pass a valid title on the transfer of a ship.”
    In England, and in all the nations of Europe, verbal policies of insurance are unknown. Insurance is required to be in writing and specific in its terms. All the old works upon which the doctrines of insurance have grown up into their present maturity are uniform in requiring that the contract of insurance should be in writing.
    See notes in first lecture to 1 Duer, notes 2, 3, 4, where the history of the insurance law, as it appears from the old *works and [156 the ancient ordinances of various commercial cities and nations, is given. In no one of all these sources of insurance-law is insurance founded on anything less than written evidence.
    In 1 Phil. Ins. 7, etc.,.the subject is treated as not settled by positive enactment or decision in this country, but the necessity of writing is impliedly taken for granted. After citing the case of Smith v. Odlin, 4 Yeates, 468, where Tilghman, J., doubts “ whether a valid insurance can be made otherwise than in writing,” the author last mentioned adds, “ and the contract is universally understood and spoken of as being written.” On page 8, same book, the same author, in speaking of agreements for insurance, says: “ But it does not appear that the parties are legally bound until the policy is filled up, or some memorandum of the contract is signed, and either actually or constructively delivered to the assured.”
    The authorities cited on the subject of a waiver of deviation nre Giddon v. Man. Ins. Co., 1 Sumn. 232; Crowningshield v. N. Y. Ins. Co., 3 Johns. 142; 1 Phil. Ins. 372.
    They all distinctly assert that a deviation can be waived only by a written instrument.
    
    III. We claim that their act of incorporation restrains the defendants from making a verbal contract of insurance. 1. Section 6 of the act (see 27 Ohio laws, 25) contains the following provisions, viz.: “ That all policies or contracts of insurance which may be made or entered into by said corporation, shall be subscribed by the president, or president pro tern., or by such other officers as shall be designated for that purpose by its by-laws, and attested by the secretary ; and being so signed and attested, shall l)e binding and obligatory on the said corporation without the seal thereof, according to the true intent and meaning of such policies or contracts.”
    This act is a public act. It contains no other provisions by which any person has or can have authority as agent for *said company, to make contracts of insurance in any other way than is here distinctly set forth. The provision above recited is imperative. It enjoins the mode in which contracts of insurance “shall” be made by the company. This section prohibits any other mode of executing contracts of insurance than such as is specified. It is the usual language employed in legislative enactments to limit and define power. Section 1 of the act makes the company generally competent to contract and be contracted with. Section 2 gives the corporation “ full power and lawful authority to insure all kinds of property against loss or damage by fire, or any other risk.” But section 6 limits the power as to contracts of insurance, by prescribing the mode in which such contracts “ shall ” be executed. Any other construction would make section 6 useless, besides contradicting the plain meaning of the language of the section itself.
    Nor is the provision at all unreasonable. The contract of insurance is and must be in its nature express, and not implied! It is a guaranty, and there is as good reason to require it to be written, as there is to require a guaranty of the payment of a debt to be written. The act is in the nature of the statute of frauds and perjuries; and we insist it is moreover in accordance with the principles of insurance law, independent of all statutes.
    The statutes of frauds and perjuries, all admit, are founded on the soundest reason. They prevent frauds, and defeat perjury. What contract is more liable to frauds and perjuries than the contract of insurance? Yerbal policies of insurance would afford as fruitful a field for frauds and perjuries, as would verbal deeds of real estate, verbal promises for the payment of other men’s debts,’ verbal promissory notes, verbal bills of exchange, or verbal marriage contracts,—all of which are by law required to be written.
    The authorities on the subject we think sustain our view of the case. Head & Amory v. Providence Ins. Co., 2 Cranch, 166-169; Beatty v. Marine Ins. Co., 2 Johns. 109; Angell *& Ames on Corp. 236; 1 Cond. U. S. S. C. 371; Ducany v. Gill, 4 Car. & P. 121; 1 Duer, 64, sec. 9.
    In the case of Head & Amory v. Providence Ins. Co., Chief Justice Marshall delivered the opinion of the court, and the opinion is conclusive upon this point of our case. In that case, there had passed written communications, between the insured and the company, which it was claimed amounted to a contract of insurance. But no instrument had been executed in the manner prescribed by the charter of the company. The court said, u It is a general rule that a corporation can only act in the manner prescribed by law. When its agents do not clothe their proceedings with those solemnities which are required by the incorporating act to enable them to bind the company, the informality of the transaction, as has been very properly urged at the bar, is itself conducive to the opinion, that such act was rather considered as manifesting the terms on which they were willing to bind the company, as negotiations preparatory to a conclusive agreement, than as a contract obligatory on both parties. Without ascribing to this body, which in its corporate capacity is the mere crea-ture of the act to which it owes its existence, all the qualities and disabilities annexed by the common law to ancient institutions of this sort, it may correctly be said to be precisely what the incorporating, act has made it, to derive all its powers from that act, and to be capable of exerting its faculties only in the manner which that act authorizes.
    “ To this source of its being, then, we must recur to ascertain its powers, and to determine whether it can complete a contract by such communications as are in this record.
    “ The act, after incorporating the stockholders by the name of the Providence Insurance Company, and enabling them to perform, by that name, those things which are necessary for a corporate body, proceeds to define the manner in which those things are to be performed. Their name of acting is thus defined : ‘ Be it further enacted, that all policies of ^assurance, and other instruments, made and signed by the president of the said company, or any other officers thereof, according to the ordinances, by-laws, and regulations of the said company, or of their board of directors, shall be good and effectual in law, to bind and oblige the said company to the performance thereof, in manner as set forth in the constitution of the said company, hereinafter recited and ratified.
    “ Ad instrument, then, to bind the company, must be signed by the president or some other officer, according to the ordinances, by-laws, and regulations of the company, or board of directors.
    “A contract varying a policy is as much an instrument as the policy itself, and therefore can only be executed in the manner-prescribed by law. The force of the policy might indeed have been actually terminated by canceling it; but a contract to cancel it is as solemn an act as a contract to make it and, to become the act of the company, must be executed according to the forms in which by law they are enabled to act.
    “ It appears to the court, that an act not performed according to the requisites of the law, can not be considered as the act of the company, in a case relating to the formation or dissolution of a policy.
    
      “ If the testimony of Mr. Jackson is to be understood as stating that an assent to the formation or dissolution of a policy, if manifested according to the forms required, is as binding as the actual performance of the act agreed to be done, it is probable that the practice he alludes to is correct. But if he means to say that this assent may be manifested by parol, the practice can not receive the sanction of this court. It would be to dispense with the formalities required by law for Valuable purposes, and to enable these artificial bodies to act and to contract in a manner essentially different from that prescribed for them by the legislature. Nor do the oases which have been cited by the gentlemen of the bar, appear to the court to apply in principle to this.
    *“ An individual has an original capacity to contract and bind himself in such manner as he pleases. For the general security of society, however, from frauds and perjuries, this general power is restricted, and he is disabled from making certain contracts by parol. This disabling act has received constructions which take out of its operation several cases not within the mischief, but which might very possibly be deemed within the strict letter of the law. He who acts by another, acts for himself. He who authorizes another to make a writing for him, makes it himself. But with these bodies which have only a legal existence, it is otherwise. The act of incorporation is to them an enabling act; it gives them all the power they possess ; it enables them to contract, and when it prescribes to them a mode of contracting, they must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated.”
    ¥e have borrowed a liberal extract from Judge Marshall’s decision, because it is very much to the purpose, and lays down what we urge as the true principle applicable to this case in language not to be misunderstood, and gives to it the full authority of his-deliberate opinion. There are two points, however, in which the-case now before this court is stronger against the power to make a verbal insurance than the case of Head & Amory v. Prov. Ins. Co. The act of incorporation in that case, merely declared that “ all poliices of assurance and other instruments, made and signed,” etc., “ shall be good and effectual in law, to bind and oblige the said company,” etc., without any prohibitory or restraining words. The act of incorporation of the defendant in this case provides “ that all policies or contracts of insurance which may be made or entered into by said corporation, shall be subscribed by the presi* dent, or president pro tem., or by such other officer as shall be designated for that purpose,” etc. This language clearly prescribes the mode of making contracts of insurance under the charter, and as clearly excludes all other modes.
    *The second point in which the present case might be distinguished from the case of Head & Amory v. Providence Insurance Co. is, that in that case testimony was introduced to show a custom sanctioning such contracts as that which was relied on in that case. The court held such testimony incompetent. But here we have no such statement to meet. No custom is alleged or pretended.
    The case of Beatty v. Marine Insurance Co., 2 Johns. 109, is to the same effect. The opinion was by Judge Thompson, afterward judge of the Supreme Court of the United States. He says, “ The only question in dispute between the parties is, whether there was a valid and binding acceptance of the abandonment made to the underwriters. To determine this point, recurrence must be had in the first place, to the act incorporating the Marine Insurance Company, in order to ascertain who were empowered to accept an abandonment, and adjust a loss.” After stating the provisions of the charter on the point in question, the judge remarks: “The defendant being a body corporate, the general and invariable rule is, that such body can act only in the mode prescribed by the law creating it. To enable-its agents to bind the company, they must act pursuant to the requisites of the incorporating act.”
    So in Angelí & Ames on Corporations, 229, the authors say, sec. 6: “ Whore the charter or act of incorporation prescribes the mode in which the officers or agents of a corporation must act or contract, to render their acts or contracts obligatory on the corporation, that mode must be strictly pursued.” The subject is pretty fully discussed in the work last cited, and the authority of the case of Head & Amory v. Providence Insurance Co. fully acknowledged.
    In the case of the New England Marine Insurance Co. v. De Wolf, 8 Pick. 56, the court held an assignment to which the company assented by their secretary was binding on the company, as the act of incorporation did not require the assent to an assignment to be signed by the president. The court (C. J. Parker) say, “ It is to be presumed that the secretary *acted under instructions of the president and directors, and the charter does not require the signature of the presiden t to any instrument but the policy. ’ ’
    
    This subject is stated very briefly, and with the proper distinctions, by Duer. 1 Duer, 65, see. 9. He says, “ Where the insurance is made by an incorporated company, the execution of the policy must be attested by the officer or officers designated for that purpose by its charter, or by its by-laws. In the United States, according to the recent decisions, the addition of the corporate seal is not necessary to complete the attestations, unless its use is enjoined by the charter.”
    IY. There is no consideration to support the pretended new contract or waiver. As stated in the declaration, there was no premium paid for the new contract. It is only alleged that the plaintiff made the purchase in consequence of the alleged promise. But the defendants received no benefit or advantage whatever. ■Can a binding contract of insurance arise in that way ? We think not. It is merely a promise to make a gift in a certain event. Can that be binding? The purchase is in no way made for the company at their desire, or for their benefit. The plaintiff himself has done nothing intended for the benefit of the defendants, .as a consideration for the alleged promise.
    Y. The first error assigned, can not be entertained by the court.
    Originally, the declaration consisted of but one count. On that the defendants took issue, and a trial was had, when the exceptions were taken upon which the first error, is predicated. Instead, of suing out a writ of error, the plaintiff’s counsel obtained leave to amend, by adding a new count to their declaration, and then, ■on further leave, struck out the old count altogether. With the ■original count, the exceptions that grew out of it, passed from the Teach of this court.
    Wrights & Miner, also of counsel for the defendant in error, *being satisfied with the argument of their colleagues, submitted nothing in addition
   Bead, J.

The first error assigned will not be considered. The count under which the evidence was offered that was rejected by the court, has been abandoned and forms no part of the record. The special matter which was rejected was inserted in a second count which was added on leave to amend the declaration, to which count a general demurrer was put in. Thus, in either form, the same legal questions are brought to the consideration of the court.

A determination of the following questions must determine this case:

1. Is a verbal policy known to the law of insurance?

2. Is a verbal waiver of forfeiture binding?

3. If an end be put to a policy before the time limited for its expiration by a determination of the interest of the insured by transfer, will a verbal agreement of the underwriter, on demand and refusal to abate the premium for the unexpired time, that if the insured will repurchase the interest the policy shall continue to attach for the original time limited, bind the underwriter for a loss which may accrue afterward, but within the original time limited, either upon the original policy, or such verbal agreement?

The last proposition involves the two first, and presents the additional feature, as to whether a verbal agreement can revive and continue a policy which had been put an end to by a judicial sale of his interest, in case of a re-acquisition of such interest by the insured. This feature was regarded by counsel as novel, and worthy of consideration by the whole court. As to the first proposition :

Insurance is a branch of the law merchant, and its nature and principles spring from commercial usage, to which we are to look for tbe forms and mode in which it is reduced to practical action, in cases not determined by positive decisions or the rules of municipal law. The form of giving ^effect to the indemnity, is by a written instrument, containing the consideration, terms, and stipulations of the contract of indemnity between the underwriter and' tbe insured, called a policy. It is universal commercial usage, that this policy shall be in writing, and there is no exception to it in positive decision or municipal regulation. Such a thing as a verbal policy is unknown to the law of insurance. All the books upon the subject, and decisions, unite in declaring that a policy must be in writing. And in every instance where the municipal law has created and empowered corporations to enter upon the business of insurance, it has required that the contract of insurance, or the policy, should be in writing, and signed by the parties to be bound. It is so in the act incorporating the insurance company now in question. To hold that there could be1 sneh a thing as a verbal policy would be contrary to all commercial usage, and the authority of all the books and decisions, and in this case would be in opposition to the spirit and express requirements of the act of our legislature creating the company. It may bo said that this act is directory only to the officers of the-company, and that a failure to comply with its requisitions on-their part, ought not to relieve the company from a compliance with a verbal contract entered into on their part, upon full consideration. That it is no hardship to compel men to comply with their contracts. The reply to this is, that it not only contradicts all the settled notions upon this subject contained in the books- and decisions, and universal usage, but the statute itself declares that the contract or policy being so “ signed and attested ” as is designated in the act, “shall be binding and obligatory upon the corporation without the seal thereof.” But without the act we should hold that a policy of insurance upon the principle of general usage must be in writing, as supported and declared by universal adjudication.

As to the second point. A waiver of forfeiture must be in writing. This point is established by the decisions referred *to by the plaintiff, and by commercial usage. There is no decision to the contrary, and we do not feel at liberty to depart from a principle of universal recognition, in a matter of commercial law.

As to the third point. If the verbal agreement be considered a. new policy, or a waiver, it is invalid, as we have stated. But it is stated that the policy did not become extinct by the act of sale, because it might have been assigned to the new purchaser by the assent of the company. We can not adopt this reasoning. The policy was at an end by the transfer of the entire interest of the insured by judicial sale. Upon a loss happening after the sale, no one could.have enforced the original policy; it was at an end; or at least its obligation was destroyed by a determination of tho interest of the insured. The boat was discharged of the policy. The repurchase of the boat by the insured would not reinstate the policy. It required some further act to be done. If the determination of the interest of the insured was a forfeiture merely of the policy, that could only be waived by a written instrument to-that effect. If this was not a forfeiture which could be waived, but an entire destruction of the policy, the agreement was equivalent to a new policy, and should have been in writing. But it is-said that, as the old policy attached to the same boat, and the names and interest of the parties were the same under the repurchase, it might, under the verbal agreement, be considered as a new policy for the unexpired time. But to have given it effect as a new policy, it should have been delivered as such. This was not done. The parties evidently treated the judicial sale as a forfeiture, and the verbal agreement as a waiver of such forfeiture. In this view it is invalid, as the waiver should have been in writing. But it may be said that this was not a waiver of forfeiture, but a parol agreement that the old policy which had been severed from the boat by the transfer, should re-attach and continue for the unexpired time, on a repurchase of the boat. This gives to the verbal agreement the force and effect *of a new policy; it is the verbal agreement which re-attaches the policy, and gives it life and obligatory force. The policy was at an end; and the same reasons which would require the original policy, or a waiver of forfeiture to be in writing, would require an agreement of this sort to be in writing, even if it can be considered in any other light than a waiver of a forfeiture.

In view of all the facts relied upon by the plaintiff, we see no mode in which he could recover without violating well-established; principles in the general law of insurance, and the spirit, if not the letter, of the act incorporating this company. Judgment affirmed.  