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the surest writing or policy of assurance heretofore made in Lombard Street, or in the Royal Exchange, or elsewhere in London. And so we, the assurers, are contented, and hereby promise and bind ourselves, each one for his own part, our heirs, executors, and goods, to the assureds, their executors, administrators, and assigns, for the true performance of the premises, confessing ourselves paid the consideration due unto us for this assurance by the assured, at and after the rate of (the premium, so much per cent.) In witness whereof we, the assurers, have subscribed our names, and sums assured, in London." This is necessary, of course, for the protection of the assured, and, as we before observed, the policy is signed only by the underwriters. But it is to be recollected that they, in the policy itself to which their names are affixed, "confess themselves paid the consideration due unto them for this assurance by the assured, at and after the rate of ( );" and therefore a court of law, or of equity, will bind them to their bargain. The policy becomes the property of the assured, and he may maintain an action for it against any person wrongfully withholding it, either the broker, or any party into whose hands it may have got; but the broker (as we shall presently see) has a lien on the policy for advances.

Lord Mansfield, in a case of Harding v. Carter and Another (a), reported in the late Mr. J. Park's Treatise, very early laid the law down in favour of the assured. The action of trover was brought by the plaintiff (a captain of a ship) against the defendants, who were brokers, for two policies of assurance. The defendants wrote to the plaintiff that they had had two policies made, the one on the plaintiff's "clothes and wages," the other on the account of the "owners," and that the underwriter was Mr. Newnham. A loss having happened, the defendants produced a policy, underwritten by one T. S., only insuring the ship, in which the plaintiff had no interest. Lord Mansfield." I shall consider the

(a) Sit. at Guildhall, Easter Vacation, 1781. Park Ins. p. 5.

M M

Who may be the assurers.

defendants as the actual assurers, and therefore the plaintiff must prove his interest and loss." The defence set up was, that the letter above stated in evidence was written by the defendant's clerk, by mistake; and it was said that trover could not be maintained for that which never existed; but his Lordship would not suffer the defendants now to contradict their own representation; and the plaintiff accordingly had a verdict to the amount of his interest, the premium being deducted.

In the beginning of this Treatise, I mentioned who might, by law, be the assured. I shall now briefly state who may be the assurers. It seems that at the common law, and by the usage of merchants, any person whatever might be an assurer, however unable he might be from poverty to make up the losses insured, provided the merchant was weak enough to trust to such a security. In process of time, however, there were so many who made a great show of wealth, in order to deceive the honest and unsuspicious trader out of his premium, that it became an object of national and Parlia mentary interference. And by the statute 6 Geo. 1, c. 18, the king was empowered to found two chartered companies, viz., "The Royal Exchange Assurance Company," and "London Assurance Company," for making marine insurances, and for lending money on bottomry; and, by the 12th section of the act, a monopoly was given them, in exclusion of all other corporations or partnerships, all policies made by which were declared to be void, and the parties to them liable to the penalties of usury. Individual persons, however, might underwrite policies or lend on bottomry, if not on account of a corporation or partnership. And, by the 26th section, the "South Sea Company," and "The East India Company," were also allowed to lend on bottomry, with regard to ships and goods in their service. The privilege, however, thus given to these two companies, in exclusion of all other corporations and partnerships, is now taken away by 5 Geo. 4, c. 114; by the second section, however, of this act it is provided that nothing in that act should affect the rights and privileges

of the two corporations, otherwise than by making it lawful for other corporations and bodies politic, and persons acting in partnership, to grant and make policies of insurance, and contracts of bottomry. Insurances may, therefore, at this day be made by private individuals, and by partnerships or companies, with or without charters, without any restriction. The companies who have in recent years come into existence in consequence of this enactment, it may easily be imagined, are extremely numerous both in England, Scotland, and Ireland; it would be useless for me to mention their names, a great number of them, however, will be found to be parties in of the recent cases referred to by me. I, however, shall just refer to the ancient chartered companies of "The Royal Exchange Assurance Company," and that of the "London Assurance Company:"

many

surance Com

pany."

1. The Company of the London Assurance, whose policies «London Aswere nearly the same as those of the Royal Exchange Company, have now adopted the following memorandum, more analogous to that of the private assurers, as it re-establishes the exception, which they had discontinued, in the "case of stranding" (a):-" Free from all average on rice, corn, flour, fish, salt, saltpetre, fruit, and seeds, except general, or the ship be stranded;" "free from average on sugar, rum, hides, skins, hemp, flax, and tobacco, under five pounds per cent. ; and on all other goods, the freight, and ship, under three pounds per cent., except general, or the ship be stranded." 2. The Royal Exchange Company, which is remarkable for The Royal the following memorandum, which does not contain the words, Assurance "unless the ship be stranded":"Free from all average on Company. corn, flour, fish, salt, fruit, seeds, hides, and tobacco, unless general, or otherwise specially agreed.

"Free from average on sugar, rum, skin, hemp, and flax,

(a) See ante, p. 496, the account given by Sir F. Norton, in his argument, 3 Burr. 1553, of the Company having given up the use of that part of the memorandum re

lating to the stranding "of the
ship" after having been defeated in
an action of Cantillon v. the Com-
pany.

Exchange

Private
Assurers.

Insurance brokers.

under five per cent.; and on all other goods, and on the ship, under three per cent., unless general."

3. Of the private assurers, it is hardly necessary I should mention the society of underwriters at Lloyd's, who assemble together in a large room in the Royal Exchange. These underwriters, though quite independent of each other, have rules and regulations which are binding for the most part upon them all; they have a list of every registered British ship certainly, with the class to which it belongs; they have agents all over the world; they have daily accounts from all parts of the globe relating to ships, the accidents which have happened to them, accounts respecting their arrival at their ports of destination, of the times of their setting sail on their different voyages, of their being missing and not heard of, and of every thing relating to the ships which are dispersed over the world, which may (by possibility) interest and affect their concerns. They are a highly honorable and wealthy set of persons. There are also underwriters residing in the large sea-port towns in Great Britain, such as Liverpool, Bristol, Edinburgh, Dublin, and others.

And I must now mention another class of men, viz., the insurance brokers, who, in fact, are the agents who actually make for the merchants, their principals, the insurances with the underwriters. They are, as well as the underwriters, a most respectable class of persons, and extremely useful to merchants living at a distance from London. And in this section I propose, first, to consider what are the rights and duties of the insurance broker, and also in what manner the settlement of accounts between them, the underwriters, and the assured, in point of practice, really takes place. And in this section the settlement which I allude to, is that amicable arrangement between the assured and the underwriters, by which the losses are paid after they have been adjusted; in a further part of this Treatise it will, unfortunately, be necessary to point out by what form of legal proceeding either party must adopt, in order to obtain a proper redress for what

they may consider the wrongs and grievances they have received from the other party.

ance broker.

Policies of insurance are seldom made by the party himself Of the insurreally interested, but generally by the intervention of an agent employed by the assured, called an insurance broker, who transacts the business with the underwriters as attorney for his principal, from whom he receives his instructions, which if he do not obey, and from which if he deviate, he is answerable to his employer in an action like any other person who undertakes any office, employment, trust, or duty, and who thereby impliedly undertakes to perform it with integrity, diligence, and skill, Delany v. Stoddart (a). Insurance brokers are a class of persons who may be properly enough designated as the goers-between the merchant making insurances and the underwriters who subscribe the policies. As many of the former reside abroad, or in remote parts of England, and may be supposed, frequently, not even to be known to the underwriters, the brokers who make the insurances for them in London, must be considered as a very useful class of agents, and are, in some respects, invested with a superior degree of authority than agents in general are. They are likewise persons of great respectability and honour, and to whom the merchant is able to look with confidence for a proper performance of his duty, and for the selection of accredited and responsible underwriters to subscribe the policy.

When a merchant abroad consigns goods to another in this country, giving instructions to the consignee to make insurances upon the cargo, the proper and usual plan is for the merchant here to apply to a broker who is personally acquainted with the underwriters, and who gets the insurance made by them, thus dividing the risk amongst a number of responsible persons. It need, therefore, hardly be remarked, that if the merchant at home, instead of proceeding in this manner, were to take the risk upon himself, without the

(a) 1 T. R. 22.

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