liable upon it to a third party, he is entitled to his return premium in the same way as if he had paid it in cash. If a policy be assigned, the right to a return of premium does not pass with it.2 1 See ante, p. 503, n. 3 and 4, as to the payment of premium in England. In Hemmenway v. Bradford, 14 Mass. 121, a promissory note had been given for the premium, which still remained unpaid, and had never been negotiated. Per Curiam: "It has been repeatedly decided in this court, that when the assured is entitled to a return of premium, he may recover the amount in an action for money had and received; although his note given for the premium should not have been paid. The underwriter, by the terms of the policy, expressly acknowledges the receipt of the premium; and whether it was paid to him in cash, or in merchandise, or by a negotiable note, or in any other manner, the action to recover it back will still be in the same form." The giving of a promissory note is, in Massachusetts, prima facie payment. This view of the nature of a promissory note may have influenced this decision, so as to affect its weight as an authority in other courts. 2 Felton v. Brooks, 4 Cush. 203; Castelli v. Boddington, 1 Ellis & B. 66, 16 Eng. L. & Eq. 127. CHAPTER XVI. OF THE DESCRIPTION OF THE PROPERTY INSURED. THE property insured should be set forth in the policy, or the means of further description referred to, in such a way that the subject-matter of the insurance can be distinctly identified. This seems to be the only general rule on the subject; but there are many subordinate and subsidiary rules. And usually much latitude of construction is allowed in applying the terms used in a policy to the interest of the assured. For if the assured has concealed any fact respecting his interest which it is material for the insurer to know, the latter can set up the concealment as a defence. If there has been no concealment, it seems unjust that the assured should suffer, even if only a liberal construction can bring his interest within the terms of the policy. This seems to be a reason for construing policies of insurance in favor of the assured, with greater liberality than other contracts; and such, to some extent, appear to have been the policy and practice of the courts. If the description be, on the whole, sufficient for identification, a mere mistake in a name or other part of it will not avoid the policy.1 1 In Ruan v. Gardner, 1 Wash. C. C. 145, the agent of the insured, by mistake, described the goods as marked (D), on board the Brothers. The goods were on board the vessel named, but not marked as described. Mr. Justice Washington said: "It was perfectly immaterial to the risk what were the marks on the hogsheads, provided the risk undertaken by the underwriters was neither changed nor increased. Nor was this the case since it is in proof that the plaintiff shipped but five hogsheads on board the Brothers. If, indeed, he had had more, some marked D, and others with other marks, and a partial loss had happened, it would not have been competent to the plaintiff to shift from one mark to another so as to alter the risk and possibly make the underwriters liable for hogsheads not insured. But this was not, and could not be, the case in the present instance." In the common form of policies there is usually added to the name given to the ship the clause, "or by whatsoever other name or names the said vessel shall be named or called." It was once contended that this meant other names in addition to the one given in the policy, and hence that under a policy insuring the Leopard there could be no recovery for the loss of a ship called the outward cargo was there taken out and reshipped; it was held, that the description applied only to the salt, and that that alone was covered by the policy. See also Rickman v. Carstairs, 5 B. & Ad. 651; Hunter v. Leathley, 10 B. & C. 858, 7 Bing. 517; Grant v. Paxton, 1 Taunt. 463. The subject-matter may be identified by the port of shipment,1 or by the voyage, or by the consignee,2 or by the time of shipment. If a vessel in the trade referred to and belonging to the assured, or having cargo so belonging, answers accurately to the whole description, another which answers to it also but only imperfectly cannot be substituted for the first by evidence of intention. But where dif ferent shipments come within the description in the policy, there it seems to be the rule that the insured may attach it to any of them by his declaration,5 and he may so attach it by a bona fide Leonard. But the court held other wise, saying, that under this clause it was only necessary to prove the iden-, tity of the ship. Hall v. Molineaux, cited 6 East, 386. So a vessel called the President may be shown to be the one described as called "the American ship President." Le Mesurier v. Vaughan, 6 East, 382. And the "Tres Hermanas," to be the "Three Sisters." Clapham v. Cologan, 3 Campb. 382. In Sea Ins. Co. v. Fowler, 21 Wend. 600, there was an insurance on goods laden on board the brig Abeona. There were two vessels in the trade of the same name, one a brig and the other a schooner or half-brig. The goods were laden on board the latter. Held, that the burden was on the plaintiff to prove that, although the brig was mentioned, the schooner was the one meant. Emerigon, c. vi. § ii. (Meredith's ed.), 127, says: "All our authors agree that we must not refine too much on this point of the name of the ship, provided the error which has taken place does not prevent us from recognizing its identity." It was before stated that words used in describing the subject of insurance are regarded as warranting that the subject shall be what it is described. Hence this subject of description is very intimately connected with that of express warranties. 2 Ballard v. Merchants' Ins. Co., 9 La. 258. In Sorbe v. Merch. Ins. Co., 6 La. 185, "the contract was made to insure goods to be shipped from Havre, or any port south of it in France, and to be consigned to the insured, during a period of six months, to commence from the 1st of August, 1832." Some of the goods were on board before that time, but the vessel did not sail until after it. Held, that the goods loaded before the 1st of August were covered. Sea Ins. Co. v. Fowler, 21 Wend. 600. Henchman v. Offley, 2 H. Bl. 345, n.; Kewley v. Ryan, 2 H. Bl. 343. In this last case the insurance was "at and from Grenada to Liverpool on any kind of goods as interest should appear, in declaration or designation made after the loss has occurred, if such appears to have been the intention of the parties. But this rule should not extend so far as to cause a dangerous facility of fraud; and, therefore, the policy will be held to cover all the shipments of the insured which have been at risk, and come clearly within the terms of the policy, unless the insured has confined the policy to some part, or shown his purpose of doing so, by some act or designation made before the loss.2 And if the policy be in the alternative, the insured may apply it to either of the alternatives. in which he is interested, unless he is interested in both; in that indorsements on this policy to be evidence of property at the risk of the company under the same." The assured received no invoice or description of the goods before intelligence of the loss, but offered to indorse as soon as the description of the goods was ascertained. It was held, that the in ship or ships on account of F. & R." There were two cargoes to which the policy would apply. The assured, in his letter directing insurance, had expressed an intention to apply the policy in question to the cargo which was lost, but this intention was unknown to the underwriter. The court said, that "the assured had clearly a right to ap-dorsement should have been made beply such an insurance to whatever ship he thought proper, within the terms of it, for which the case of Henchman v. Offley was an authority." It seems that policies of this nature were not novel in practice, at the time of the case of Da Costa v. Firth, 4 Burr. 1966 (A. D. 1776), although that was the first case of the kind in Westminster Hall. 1 Harman v. Kingston, 3 Campb. 150. The insurance was "on sugar and cotton, as might be thereafter declared and valued." No declaration of interest or valuation was made before the loss. Lord Ellenborough held, that the insured might recover as on an open policy, the interest being a matter of evidence at the trial; and said that the insured might, by duly declaring and valuing before loss, make it a valued policy. See also Craufurd v. Hunter, 8 T. R. 13, 16, note a. In Edwards v. St. Louis Perpetual Ins. Co., 7 Mo. 382, the insurance was "from St. Louis to port or ports, etc., fore the loss, and the case was distinguished from Harman v. Kingston, by reason of the different forms of expres sion in the two policies. See also Douville v. Sun Mutual Ins. Co. of N. Y., 12 La. Ann. 259, cited ante, p. 326, n. 1. But in E. Carver Co. v. Manuf. Ins, Co., 6 Gray, 214, where the policy stated that all sums placed at risk under the policy were to be indorsed thereon, the court held that if before the loss the insured intended to cover a certain shipment, they might declare it after the loss took place, if there was no want of reasonable diligence on their part. It was also held, that, after an abandonment and a suit brought on the policy, the claim was not waived by an indorsement of other risks, which would almost exhaust the policy, and the receiving back, by the assured, of the premium for the balance. 2 See N. Y. Fire Mar. Ins. Co. v. Roberts, 4 Duer, 141. See also ante, p. 326, n. 1, p. 328, n. 1. case, as if the expression were "ship or cargo," and both have been at risk, the policy must attach ratably to both.1 - Merchandise, or any equivalent word, as goods, or wares, does not apply to ornaments, or clothing, or other similar articles, if they are owned by persons on board, and are not intended in any way for sale.2 Cargo" means much the same thing as merchandise.3 "Property" is much more comprehensive; and, indeed, it 66 1 In Faris v. Newburyport Mar. Ins. Co., 3 Mass. 476, the insurance was on the cargo or freight of the ship America, both or either to the amount insured valued at the same sum. The assured was interested both in the cargo and freight, and both were lost, but as he had recovered on a prior policy for the loss of the cargo, he contended that he could apply this policy to the freight alone. Sewall, J., said: "To construe this insurance, at the election of the assured after the event, to be of the freight only, exclusive of the cargo, would establish a very unequal contract between these parties. This construction, for which the plaintiffs contend, is inadmissible, unless it appeared to be the unavoidable import of the words of the contract; which is far from being the case in this instance. The alternative in the original policy, especially connecting with the words · freight' or ' cargo'the words 'or either to the amount insured,' which are separated by the description of the voyage, and have no meaning but in the proposed connection, more naturally imports an insurance of freight or cargo as interest shall appear. In this view of it, the contract may be explained; an insurance of freight or of cargo, in the event the insured should have only one of those descriptions of property at risk in the voyage insured; and if he should have both descriptions at risk, then it is an insurance upon both proportionably to the interest of the insured." 3 2 Ross v. Thwaite, Park, Ins. 25. In Da Costa v. Firth, 4 Burr. 1966, the words "goods and merchandise,” and in Wolcott v. Eagle Ins. Co., 4 Pick. 429, the word "cargo,” were held to apply to bullion on board unless it was intended for the expenses of the master, crew, or passengers. Under many foreign ordinances bullion would' not be covered under the general term "goods." See 1 Magens, 10. The description" goods and merchandise" will cover specie dollars. Am. Ins. Co. v. Griswold, 14 Wend. 399. See also Seton v. Del. Ins. Co., 2 Wash. C. C. 175, 178, per Washington, J. In Thomas v. Royal Exch. Ass. Co., Dampier, J., ruled at Nisi Prius, that an insurance on goods and merchandise would cover dollars if entered at the custom house, but not bank-notes. Manning's Dig. 164 (ed. of 1820). No exceptions. seem to have been taken to this ruling, as the case on appeal does not mention this point. 1 Price, 195. It was also held in Wolcott v. Eagle Ins. Co., that the word" cargo" would not cover livestock on board, or hay, corn, &c., put on board mainly for the subsistence of the stock, although there was an expectation that a considerable quantity of it would remain unconsumed if the vessel should have an ordinarily good passage, and would be sold as cargo at the port of discharge. Weskett, 260, tit. Goods, was cited where the general principle is laid down that " every person making insurance under the general expression |