I am aware that there are great difficulties in the way of apportionments, and therefore the Court has sometimes leaned against them. But where an express usage is found by the jury, the difficulty is cured (a). They offered to prove the same usage as to the West Indies in general, but I stopped them, and confined the evidence to Jamaica."

The rest of the Court concurred, and the postea was delivered to the plaintiff.

SECTION V.

OF RE-ASSURANCE AND DOUBLE ASSURANCE.

Ir is necessary, in a Treatise which proposes to treat of the principles of the law of Marine Insurances, not to omit any part of the subject, which is known and acknowledged by the law of England: and I, therefore, proceed to state the law applicable to this branch, which is the head of this section, of the subject of which I proposed to consider the principles. I must, however remark, in the outset, that though the law upon this subject is well settled and established, it does not appear in the present day, to hold any place among the questions on this subject which constantly are being brought under the consideration of the Courts of Law; and what proves this more strongly, is the fact that there are not, I believe, any recent cases to be found upon the subject. The late Mr. Justice Park, whose system of Marine Insurance is the best guide to any one who wishes to have an extensive knowledge on the law and practice of Marine Insurances; in the last edition by himself in 1817, does not mention any, what would be called modern cases in his time, and for a very sufficient reason, because there are none. Fortunately, however, the principles of the law relating to this subject, were laid down by that great Judge Lord Chief Justice Mansfield,

(a) See Meyer v. Gregson, ante, p. 770.

to whose talents and enlarged understanding and great industry, the world are indebted for the thorough explanations and illustrations of the whole of this subject, conveyed in language the most lucid, and beautifully impressive and convincing to the mind.

I shall now at once proceed to mention the important cases decided on this part of our subject, by that learned Judge.

section of 19 Geo. 2, c. 37, it is unlawful to make re

First, however, I must refer back to that act of 19 Geo. 2, c. 37, which underwent a good deal of discussion in a previous part of this Treatise, on the subject of 'wagering policies,' and policies on interest or no interest.' Section the fourth, By the fourth which has not been adverted to before, enacts" that it shall not be lawful to make re-assurance, unless the assurer should be insolvent, become bankrupt, or die; in either of which cases, such assurer, his executors, administrators, or assigns, may make re-assurance to the amount before by him assured, provided it be expressed in the policy to be a die. re-assurance."

assurance

unless the

assurer be insolvent, become

bankrupt, or

ance.

Re-assurance" as understood by the law of England, may 1. Re-assurbe said to be a contract which the first assurer enters into, in order to relieve himself from those risks which he has incautiously taken, by throwing them upon other underwriters who are called re-assurers." (a) This practice seems to have been copied in this country from many of the commercial states on the continent. Many foreign writers upon assurance have written in favour of it: amongst the most celebrated may be mentioned Le Guidon (b), Roccus (c), Emerigon (d), and Pothier (e). And the ordinances of Louis the Fourteenth, adopted and followed the idea that prevailed in France when the Treatise Le Guidon was written, and by an article in that celebrated code of laws (ƒ), it is expressly declared, "that it should be lawful to the assurers to make

(a) Park Ins. 595.

(b) C. 2, art. 19.

(c) De Assecur. note 12.

(e) Tit. Assur. No. 96.

(ƒ) Ord. of Louis XIV. tit. Assur.

art. 20.

(d) 1, art. 247.

2. Double insurance.

re-assurance with other men of those effects which they had themselves previously insured."

But the practice in England, when it was unfettered and unrestrained soon became pernicious to a large commercial nation, and instead of conferring the great benefits which were expected from them, as written by those foreign writers, were at length with their companions the "wager policies," which were quite as mischievous, included in the act of 19 Geo. 2, c. 37, which most effectually put a stop to the prac tice of "wager policies," and also seems by the restrictions in the fourth clause of the act, very nearly as well to have put a stop to the practice in this kingdom of re-assuring.

This being premised, and the enactment being borne in mind, I now proceed to mention the only case upon this subject.

This clause came on to be considered, in the case of Andree v. Fletcher (a), in the form of a special case, by the Court of King's Bench, stating that a re-assurance was made by the defendant on a French vessel, first insured by a French underwriter at Marseilles, who was living, and at the time of subscribing the second policy, was solvent.

The Court (Ashurst, Buller and Grose, Justices), were unanimously of opinion, that this policy was void: and that every re-assurance in this country, either by British subjects or foreigners, on British or foreign ships, is void by the statute, unless the first assurer be insolvent, become bankrupt, or die.

A double insurance is where an assured, claims to receive two sums instead of one, or the same sum twice over, by reason of his having two insurances upon the same goods on the same ship. A double insurance is not void, but still the assured shall recover no more than the amount of his loss. It being settled that the assured can recover no more than his actual loss, and it being allowed him to fix on which underwriter he chooses, it is a principle of natural justice that

(a) 2 T. R. 161.

the several insurers should all of them contribute in their several proportions, to satisfy that loss, against which they have all insured. These principles have been fully settled to be law in cases which I am about to mention.

In the year 1763, in the case of Newby v. Reed (a), it was held by Lord Mansfield, Chief Justice, and agreed to be the course of practice, that upon a double insurance, though the assured is not entitled to two satisfactions, yet upon the first action he may recover the whole sum insured, and may leave the defendant therein, to recover a rateable satisfaction from the other insurers.

Thus also it was determined in a subsequent case at Guild- from the others. hall, of Rogers v. Davis (b). It was an action on a policy of insurance on a ship from Newfoundland to Dominica, and from thence to the port of discharge in the West Indies. It was a valued policy on the ship and freight; and on the goods as interest should appear. The ship sailed from St. John's the 17th of December, 1775, and the plaintiff declared as for a total loss. The defendant underwrote for 2007., and has paid into Court 124. This sum was paid on a supposition that the underwriters on a former policy should bear a share of the loss. The plaintiff had originally insured at Liverpool on a voyage from Newfoundland to Barbadoes and the Leeward Islands, with an exception of American captures: but the plaintiff afterwards, for the purpose of securing himself against captures, and having altered the course of his voyage, made the present insurance. The plaintiff now insisted he was entitled to receive the full amount of his insurance against the defendant, and not to any part from the Liverpool underwriters, because the voyage not insured was different from that insured at Liverpool. There was, however, a verdict for the plaintiff for his full demand, with liberty for the defendant to bring an action against the Liverpool underwriters, if he thought fit.

(a) 1 Black. 416.

(b) Sit. in Mich. Vac. 17 Geo. 3, before Lord Mansfield. Park Ins. 601.

Where an

assured had re

the under

writers of the second insur

ance, the latter were held

cover against

the underwriters on the

first policy for their contribu

tion.

So in the case of Davis v. Gildart (a), an action was covered against brought for money had and received to the use of the plaintiff, who was the defendant in the last cause, in order to recover a contribution for the loss which the plaintiff had been obliged to pay. It was agreed by both parties to admit, that on the entitled to re- London policy (which was the subject of the former action), 22001. were insured: that on the two Liverpool policies 17007. were insured: that the merchant was interested to the amount of 500%. on the ship, 3007. on the freight, and 1400%. on the cargo; that the plaintiff had paid 2007. loss, and 477. for the costs. The question was, whether the defendant was liable to contribute anything, and what? The whole interest was 22007., and the whole insurance was 3900l. It was insisted by the counsel for the defendant, that the insurance in London was an illegal re-assurance; and therefore the plaintiff might have made a good defence in an action brought against him and if so, he could not now recover over against the defendant.

Lord Mansfield." The question seems to be, whether the insured has not two securities for the loss that has happened. If so, can there be a doubt that he may bring his action against either? It is like the case of two securities, where, if all the money be recovered against one of them, he may recover a portion from the other. Then this would bring it to the question, whether the second insurance is void as a re-assurance? But a re-assurance is a contract made by the insurer to secure himself; and this is only a double insurance." There was another ground taken in the cause, which is not material to be mentioned here: but upon this direction the plaintiff had a verdict.

2. There is an important case upon this subject, and a very elaborate argument of Lord Mansfield, in delivering the judgment of the whole Court of King's Bench, in which most of the questions relative to double insurances are clearly and decisively settled, Godlin and others v. London

(a) Sit. Easter Vac. 17 Geo. 3, at Guild. Park Ins. 601.