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the policy whilst it continues in his possession. Therefore, even in this view of the case, Mr. Tamesz must first have paid to Amyand the balance of his (Amyand's) account, before he could have gotten that policy out of Amyand's hands; and consequently Mr. Tamesz was very far from being entitled to the benefit of it as a cestuy que trust, absolutely and entirely."

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"But if the question, Whether Tamesz could take the benefit of Mr. Amyand's policy,' were doubtful; yet here, Tamesz insured the goods with the defendants, expressly under the declaration of his suspicion, that there might have been a former consignation, and some former insurance made upon the goods by some other person: but he desired to insure the whole for his own security; and to this the defendants agreed, and took the whole premium. Amyand insisted upon his right to the whole benefit of his own policy, when he was examined as a witness: and is now litigating it in Chancery. It would neither be just nor reasonable, that Tamesz should only recover half of his loss from the defendants, and be turned round for the other half to the uncertain event of a long and expensive litigation. I do not believe there ever will or can be a recovery by Tamesz, or those who shall stand in his place, against Amyand's underwriters. However, if those underwriters are liable to contribute at ali, the contribution ought to be among the several insurers themselves: but Tamesz, the insured, has a right to recover his whole loss from the defendants, upon the policy now in question, by which they are bound to pay the whole. For though here be two insurances, yet it is not a double insurance; to call it so is only confounding terms. If Tamesz could recover against both sets of insurers, yet he certainly could not recover against the underwriters of Amyand's policy, without some expense; nor without also first paying and re-imbursing to Mr. Amyand the premium he paid, and also his charges. This is by no means within the idea of a double insurance. Two persons may insure two different interests; each to the whole value; as the master for wages;

the owner for freight, &c. But a double insurance is where the same man is to receive two sums instead of one, or the same sum twice over for the same loss, by reason of his having made two insurances upon the same goods, or the same ship. Mr. Tamesz is entitled to receive the whole from the defendants, upon their policy; whatever shall become of Mr. Amyand's policy: and they will have a right, in case he can claim anything under Mr. Amyand's policy, to stand in his place, for a contribution to be paid by the other underwriters to them. But still they are obliged to pay the whole to him. Therefore, upon these grounds and principles in every light in which the case can be put, we are all of us clearly of opinion, that it is right, as it now stands for; and that the postea must be delivered to the plaintiff."

SECTION VI.

OF THE PROCEEDINGS IN THE ACTION.

HAVING in the seventeenth section of the first Part of this Treatise shewn how policies are in practice actually made, and having likewise shewn how the accounts are settled between the assured, the broker, and the underwriter, and what has been settled by the Courts as to the validity in law of passing such accounts between the three parties; in the present section it is my object to point out, in the case of either party disputing the payment demanded by the other or disputing as to the character of the loss, which of course makes all the difference in the payment, what steps and proceedings will be necessary for either to take, in the one case to recover by law what the one party claims, and in the other in order to resist it; or in any case, where either of the parties thinks that he has a legal claim against the other.

The relief which, by the law in this country is settled, is generally by an action at law. Though there are cases where either party may, and sometimes does go to a Court of

Equity for relief, as for instance for an injunction to stop an action at law. (a) There are two well known instances in which a Court of Equity will or will not interfere; which are these at the Common Law it is a maxim that a policy of assurance cannot be altered after it has been signed, (at least not without the consent of the parties) and a Court of Equity will not alter a policy in the absence of strong proof of its being contrary to the intent and agreement of the parties. This was held in the case of Henkle v. Royal Exchange Assurance Company. (b) But where a policy has been drawn up by mistake, in terms which are not conformable to the real intention of the parties, the instrument may be rectified in a Court of Equity by the slip or label, so decided in the case of Motteux v. The Governor and Company of London Assurance. (c) There is another ground for an application to a Court of Equity, where there is a suspicion of fraud on the part of the assured: in such cases, the Court of Equity will compel the party to make a full disclosure upon oath of all the circumstances that are within his knowledge. (d) But except in these instances, all issues upon policies of insurance must be tried in the Courts of Common Law.

Even if the parties, by a clause in the policy, agree that in case of a dispute, it shall be referred to arbitration, that will not be a sufficient bar to an action at law, provided no reference has been in fact made, nor is depending.

Thus in Kill v. Hollister (e) in an action upon a policy of insurance it appeared, that a clause was inserted, that in case of any loss or dispute about the policy, it should be referred to arbitration; and the plaintiff averred in his declaration, that there had been no reference. Upon the trial at Guildhall, the point was reserved for the consideration of the Court, whether this action would lie before a reference had been

(a) See Lewen v. Swasso, ante,

p. 342.

(b) 1 Ves. 317.

(c) 1 Atkyns, 545.

(d) 2 Atkyns, 359.

(e) 1 Wils. 129. And in Thomp

son v. Charnock, 8 T. R. 139, it was held that a covenant in a deed to refer all matters is not sufficient to oust the courts of law and equity of their jurisdiction.

made; and it was held by the whole Court, that if there had been a reference depending, or made and determined, it might have been a bar: but the agreement of the parties cannot oust this Court; and as no reference has been, nor any is depending, the action is well brought, and the plaintiff must have judgment.

action.

II. Having thus seen in what Courts the party injured in Of the form of the contract of insurance is to seek for redress, let us now consider, by what form of action that redress is to be obtained.

by action of

debt or

covenant.

I. The act of Parliament, by which the two insurance 1. The remedy against the Companies were erected (a), ordered, that they should have a incorporated common seal, by affixing which, all corporate bodies ratify companies is and confirm their contracts (b). Hence a policy of insurance made by the Royal Exchange Assurance Company, or the London Assurance Company, is a contract under seal; and if the contract is broken, the proceedings against these Companies must be by action of debt or covenant (c). From this circumstance a great inconvenience arose; for under the plea of the general issue to an action of debt or covenant, the true merits of the case could seldom come in question: but in order to bring them forward, it became necessary to plead specially. This was attended with such a heavy expense, such great delays, and frequent applications to Courts of Equity for relief, that the Legislature at last interposed, and enacted, "that in all actions of debt to be sued or commenced against either of the said corporations, upon any policy of insurance under the common seal of such corporations, for the assuring of any ship or ships, goods or merchandises, at sea or going to sea, it should and might be lawful to and for the said corporations, in such action or suit, to plead generally, that they owed nothing to the plaintiff or plaintiffs in such

(a) Ante, p. 530.

(b) 6 Geo. 1, c. 18.

(c) By the 39 Geo. 3, c. 83, the Globe Insurance Company was incorporated, and by the 9th sect. the same pleas and the same power to

the jury to assess the damages, are
given as in the case of the Royal
Exchange and London Assurance
Companies, and in other corporate
Insurance Companies.

EEE

They may plead the general issue and give the

special matter in evidence.

2. The remedy

against a

writer is by

suit or action; and that in all actions of covenant, which should be sued or commenced against either of the said corporations upon any such policy of assurance under the common seal of such corporation for the assuring of any ship or ships, goods or merchandises, at sea or going to sea, it should and might be lawful for the said respective corporations, in such action or suit, to plead generally, that they had not broke the covenants in such policy contained, or any of them; and if thereupon issue should be joined, it should and might be lawful for the jury, if they should see cause, upon the trial of such issue, to find a verdict for the plaintiff or plaintiffs in such suit or action, and to give so much, or such part only of the sum demanded, if it be an action of debt, or so much in damages, if it be an action of covenant, as it should appear to them, upon the evidence given upon such trial, such plaintiff or plaintiffs ought in justice to have.” (a)

2. Wherever the contract of insurance is entered into with private under- a private underwriter, it is done by the insurer merely subscribing his name to the instrument, which is no more than what is called a simple contract; the remedy for a breach of which is by an action of assumpsit, or an action upon the case founded upon the promise and undertaking of the insurer.

action of assumpsit.

3. Consolida

nature, and

3. When a number of actions are brought upon the same tion Rule.Its policy, it is a constant practice (b) to consolidate them by a rule of Court, or by a Judge's order, which restrains the usually made. plaintiff from proceeding to trial in more actions than one,

the terms on which it is

and binds the defendants, in all the others, to abide the fate of that one; but this is done on the condition that the defendant shall not file any bill in equity, or bring any writ of error for delay. The Court will likewise, upon a proper ground being made by the plaintiff, impose any other terms on the defendants which under all circumstances appear reasonable as that they shall produce at the trial all books,

:

(a) 11 Geo. 1, c. 30, s. 43. And by Reg. Gen., Trin. Term, 1 Vict. the words "by statute" must now be inserted in the margin of the

plea.

(b) See ante, p. 681, in the case of Thelluson v. Staples.

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