Henkle v. much so, that when once they are underwritten, they cannot be altered by either party; because it would open a door to an infinite variety of frauds, and introduce uncertainty into a species of contract, of which certainty and precision are the most essential requisites. In a case before Lord Chancellor Hardwicke, this doctrine was admitted in its full extent. The plaintiff had insured a ship at and from London to Ostend, from thence to Rotterdam, 1 Ves. 817. from thence to the Canaries, warranted an Ostend ship, which Company, ship was afterwards taken. The bill was brought to have the policy rectified, for that the intention of the parties was mistaken therein, which was, that the warranty was too general, and that the voyage should have been stated to take place from Ostend only, and not from London. The evidence in this case was the deposition of Knox, the agent for the company; who deposed that the plaintiff applied to him to insure the ship, and that he believed the plaintiff told him, she was, or had been an English ship, and might say something concerning the manner or intent of making her an Ostend ship; but that his answer was, that he would not enter into the manner, but that if the plaintiff would warrant her to be an Ostend ship, he would insure; and that on those terms, and no other, the agreement was made. There was the evidence of another person, who varied from Knox; in addition to which it was said, there was the evidence arising from circumstances, for that it was impossible for the plaintiff to intend to insure her as an Ostend ship, she being then in London, and could not be an Ostend ship without going to Ostend; for which proof was read that it was necessary she should be registered. Lord Chancellor." The first question is, Whether it sufficiently appears to the court, that this policy, which is a contract in writing, has been framed contrary to the intent and real agreement? It is certain, that to come at that, there ought to be the strongest proof possible; for the agreement is twice reduced into writing in the same words, and must have the same construction: and yet the plaintiff seeks, contrary to both these, to vary them, and that in a case, where his witnesses vary from each other. The single deposition, upon which it depends, is very uncertain; and imports that they relied on the the plaintiff's warranty, leaving the transaction relating to the manner of making her an Ostend ship entirely to himself. His Lordship, therefore, as there was no evidence to vary the contract from the written words, ordered the bill to be dismissed." At the same time it must be observed, that cases frequently may, and do exist, in which a policy, upon proper evidence, may be altered without any violation of the principles above laid down, and which has been often done by the courts, both of law and equity; for let it be remembered once for all, that in questions of insurance, which is a contract founded upon broad equitable principles, courts of common law are bound by the same rules of decision as courts of equity. After signing, policies are likewise frequently altered by consent of the parties, and such policies are good, agreeably to the maxim, consensus tollit errorem. ance, An instance of the former kind of alteration of a policy Motteux v. occurs in the chancellorship of Lord Hardwicke, to whose the Gov. and Comp. decision we last referred. The insurance was upon the ship of the Lon five hundred pounds, and the policy stated, that the adven- don Assurture was to commence immediately from the departure of the 1 Atkyns, ship from Fort St. George to London. The bill was brought 545 by the plaintiff, suggesting that the owner had employed a Mr. Halhead to insure the ship with the defendants, to commence from her arrival at Fort St. George: that a label, agreeable to those instructions, with all the particulars of the agreement, had been entered in a book, and subscribed by Halhead, and two of the directors of the company; that by a mistake the policy was made out different from the label; that the ship being lost in the Bay of Bengal, after her arrival at Fort St. George, but before her departure for England, the company refuse to pay; upon the suggestions, the plaintiff prayed that the mistake might be rectified, and that the company might be ordered to pay five hundred pounds with interest. His Lordship was of opinion that the label was a memorandum of the agreement, in which the material parts of the policy were inserted; that although the policy was ambiguous, the label made it clear; and as it was only a mistake of the clerk, it ought to be rectified according to the label. Bates v. Salk. 444. Harding v. In an action upon a policy of insurance and non assumpsit pleaded, the facts were, that Stubbs, a broker, had instructions to procure an insurance on goods on board the Mary Galley, of St. Christopher's, Captain A. Hill, commander: that Stubbs, in writing the policy, by mistake, made the insurance on the Mary, Captain Haslewood, commander, which was subscribed by the defendant: that the Mary Galley was lost, and then Stubbs applied to the insurers to consent to alter the policy, to which they agreed. It was urged that on account of the alteration the defendant should have an increase of premium, the ship Mary being stouter than the Mary Galley. But Holt Chief Justice, ruled, that the action well lay upon the policy, and that the mistake might be set right. A policy of insurance, when effected, becomes the property of the insured: and if it be wrongfully withheld, either by the broker employed by him to effect it, or by any other person to whose hands it may happen to come, he may maintain an action of trover for it, as well as for any other species of property. Thus an action of trover was brought against the defendants for two policies of insurance. The defendants were brokers, who had written to the plaintiff, the master of a vessel, Easter Va that they had got two policies effected; the one on account of Guildhall, cation, 1781. the plaintiff's cloaths and wages, the other on account of the owners, and that the underwriter was Mr. Newnham. A loss having happened, the defendants produced a policy, underwritten by one J. S. only insuring the ship, in which the plaintiff had no interest. Lord Mansfield." I shall consider the defendants as the actual insurers, 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 defendants' clerk through 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." It is material to observe, that policies of insurance, though called written instruments, are, for the convenience of trade, and the dispatch of business, generally printed, leaving blanks for the insertion of names and all other requisites. This being the case, it is frequently necessary to insert written clauses, in order to express the meaning of the parties to the contract, which, from some particular circumstances, the printed form may not sufficiently explain. These written clauses and conditions, thus inserted, are to be considered as the real contract; the court will look to them to find out the intention of the parties, and will consequently suffer such conditions to controul the printed words in policies of insurance. Having premised thus much of policies in general, it may be proper to consider this subject in a threefold point of view: First, what persons may be insurers; Secondly, what things may be insured; Thirdly, what the requisites of a policy are. 1st. What persons may be insurers. It should seem, that by the common law and usage of merchants, any person whatever might be an insurer, however unable he might be, from poverty, to make up the losses insured against, provided the merchant was weak enough to trust to such a security. In process of time, however, there were so many who made a shew of great wealth, in order to deceive the honest and unsuspicious trader out of his premiums, and who were in insolvent circumstances, that it became an object of national concern, and parliamentary interference. The mischiefs then existing in this branch of trade, and the dangerous consequences thence arising to the interests of the country, are to be collected from the preamble of the statute, which passed in the reign of George the First, to remedy these evils, and which 6 Geo. 1. has in some, though not in any great degree, restrained the rule of the common law as to the unlimited right any man or body of men had to become insurers. "Whereas it has been "found by experience, that many particular persons, after * See the effect of the written and printed clauses in a policy of insurance very lucidly explained by Lord Ellenborough in giving judgment, in a cause of Robertson v. French, post, Ch. 2. Of the Construction of a Policy of Insurance. B S ❝ they c. 18. "they have received large premiums or consideration monies "for or towards the insuring of ships, goods, and merchan"dizes at sea, have become bankrupts, or otherwise failed in answering or complying with their policies of insurance, whereby they were particularly engaged to make good, or "contribute towards the losses which merchants and traders "have sustained, to the ruin and impoverishment of many "merchants and traders, and to the discouragement of adven"turers at sea, and to the great diminution of the trade, "wealth, strength, and publick revenues of the kingdom: "And whereas it is conceived, that if two several and distinct "corporations, with a competent joint stock to each of them "belonging, and under proper conditions, restrictions, and "regulations, were erected and established for assurance of "ships, goods, or merchandizes at sea, or going to sea, (ex«clusive of all or any other corporations or bodies politic "already created, or hereafter to be created, and likewise "exclusive of such societies or partnerships as now are, or may "hereafter be entered into for that purpose,) several mer"chants or traders, who adventure their estates, or part of "their estates, in such ships, goods, and merchandizes, at sea, or going to sea, (especially in remote or hazardous "voyages,) would think it much safer for them to depend 66 upon the policies or assurances of either of those two cor"porations, so to be erected and established, than on the "policies or assurances of private or particular persons." The statute then goes on to authorize his majesty to grant charters to two distinct companies or corporations, for the assurance of ships, goods, and merchandizes, at sea, or going to sea, and for lending money on bottomree. The statute also enacts that the corporations may purchase lands to the amount of one thousand pounds per annum, may have a common seal, and may be capable to sue and be sued at law; that each corporation shall provide a sufficient stock of ready money to satisfy and discharge all just demands, arising upon their policies of insurance; and in case of refusal, the parties insured may bring their action against the corporation, and shall recover double damages and costs. This clause, however, giving double c.15.3.25. damages, was afterwards thought by the legislature to be hard 30.543. and oppressive; and therefore, by a clause in a subsequent statute, these corporations were allowed to plead the general 8 Geo. I. II Geo. I. 66 |