stating the facts already mentioned. In addition to which, they expressly find, that it is "the constant and invariable 66 usage in an insurance, at and from Jamaica to London, "warranted to depart with convoy, or to sail on or before the "1st of August, when the ship does not depart with convoy, "or sails after the 1st of August, to return the premium, de"ducting one half per cent." Lord Mansfield. "An insurance being on goods warranted to depart with convoy, the ship sails without convoy; and an action is brought to recover the premium. The law is clear, that if the risk be commenced, there shall be no return. Hence questions arise of distinct risks insured by one policy or instrument. My opinion has been to divide the risks. I am aware that there are great difficulties in the way of apportionments, and therefore the Court has sometimes leaned against Vide Meyer them. But where an express usage is found by the jury, the v. Gregson. difficulty is cured. They offered to prove the same usage as to the West-Indies in general; but I stopped them, and confined the evidence to Jamaica." Mr. Justice Willes, and Mr. Justice Ashhurst, concurred with His Lordship. Mr. Justice Buller." The counsel for the defendant did right in his argument to make the chief question, Whether parol evidence of this usage ought to have been received? In mercantile cases from Lord Holt's time, and in policies of insurance in particular, a great latitude of construction as to usage has been admitted. By usage, places come within the policy, which are not expressed in words; usage explains and even controls the policy. The usage here found by the jury is universal: and though in some cases one half per cent. may be a small premium for the risk at; yet the underwriters are aware that it is so. In Meyer v. Gregson, no usage was found. Besides in cases of this kind, where every thing is left to the whim and caprice of a jury, I lean much against them. Here a general and certain usage is found; and no incon venience can result from it." The postea was delivered to the plaintiff. From From the tenour of all these cases it should seem, as Lord Mansfield said in the case of Long v. Allen, that so many difficulties occur in apportioning the premium, that the Courts are often obliged to decide against it, unless there be some usage upon the subject. Even in the case of Stevenson v. Snow, the jury found that it had been usual to divide the risk; and although the Court rejected the usage for uncertainty, because it did not ascertain what proportion of the premium should be returned; yet they expressly say, that it serves to shew what the idea of the mercantile world is upon the subject. If, indeed, we look back to all the cases reported in this chapter, we never find an apportionment take place, except in Stevenson v. Snow, and Long v. Allen, on account of the difficulty, unless there be some usage, as in those cases, to guide and direct the judgment of the Court: and of late years one has known no instance of an apportionment occur. Before this chapter is concluded, it will be proper to observe, Vide ante, that in the case of Bond v. Nutt, which was so often mentioned c.18. in the argument of the cases upon apportionment, the question never arose. In that case, the two material questions were, as may be seen by a reference to it in the two preceding chapters of this work, whether the ship had complied with a warranty of sailing by a particular day: and whether in going to the place of rendezvous for convoy, she was guilty of a wilful deviation. It was proper to mention this, to prevent misconstruction; and it was also taken notice of by Mr. Justice Buller, in the case of Long v. Allen. troduction. CHAPTER XX. Of the Proceedings upon Policies of Insurance. IN the present chapter, it is intended to point out in what manner, and by what form of legal proceeding, a man, who has insured property, and has sustained a loss, is to recover Vide the In- against the underwriters upon the policy. We have formerly seen, that the Court of Policies of Insurance fell into disuse, and the reasons why it did so: since which period all questions of this nature have been decided by the usual mode of trial, known to the laws and constitution of this country, namely, the trial by jury in the Courts of common law. Cases of this nature are not the subject of enquiry even in a Court of Equity, because the demand is plainly a demand at law; and the loss and damage sustained are as much the object of proof by witnesses, as any other species of damage whatever. This was decided by a decree of Lord Chancellor King, whose opinion was afterwards confirmed by the House of Lords. De Ghetoff and others v. the Go In the year 1720, some merchants at Ostend set up a trade to the East-Indies; and among others, one James Maelvernor and camp equipped a ship called the Flandria, for a voyage to Company of the London China, wherein several persons were concerned. Maelcamp Assurance, had the care and direction of the ship, and gave receipts Parl. Cases, to the several persons concerned, for the monies they paid, 3 Brown's 525. promising to be accountable to them for their respective proportions of the net profit of the voyage. These transac tions being carried on mostly at Ostend or Antwerp, the several persons, who had a mind to be concerned in the undertaking, gave directions to their correspondents at those places, to pay Maclcamp what sums they thought fit, and to take his receipts for the same. The appellants gave directions to oue Conninck to pay several large sums to Maelcamp, on account account of the said undertaking; and accordingly Conninck paid him divers sums amounting to 35,000 guilders, and took distinct receipts for the same, according to the proportion for which the appellants were concerned therein: he also, by the order and direction of the appellants, and for their use or benefit, agreed with the respondents to insure on the said ship the Flandria, 5000l. and by a policy, dated the 26th day of December 1720, this insurance was effected, at a premium of 12l. per cent. The ship sailed from Ostend, in order to proceed to China; but on her way was seized at Bencoolen, in the East Indies, by the governor, being an English settlement, and the ship and cargo were confiscated. The appellants, upon notice of this event, applied to the respondents for payment of the 5000l. insured, and produced to them the several receipts for their respective interests in the ship, and affidavits affirming the several sums therein mentioned, to have been really and bonâ fide paid. But the respondents refusing to pay, or make any satisfaction to the appellants, they brought their bill in the Court of Chancery, against the respondents, and the said Conninck, praying, that the respondents might be decreed to pay the appellants the said sum of 5000l. with interest, according to their several and respective shares and proportions thereof. To this bill the respondents put in a demurrer and answer, and to such part of the bill, as sought to compel them to pay the appellants the 5000l. or to make them any satisfaction for any loss, which had happened to the ship, they demurred; and for cause of demurrer shewed, that if the policy of insurance in the bill mentioned was forfeited, a proper action at law lay to recover the money due thereupon ; and that the appellants, if they were entitled to such relief as they prayed by their bill, might have their complete and adequate remedy by an action at law, where such matters were properly cognizable, and where the appellants ought to prove their interest in, and the loss of the ship. The demurrer came on to be argued before Lord Chancellor King, when His Lordship ordered it to stand over for two months till Conninck's answer should come in; and if the appellants did not procure such answer in two months, the demurrer was to be allowed. Conninck accordingly put in his answer within two months, and thereby admitted, that he made the assurance in his own name, in trust and for the benefit of the appellants; but r Atk. 547. 2 Atk. 359. Chitty v. Selwin and 2 Atk. 359 but said he did not care to permit the appellants to bring any action against the respondents in his name, he being advised, that if any such action should be brought and they should not prevail therein, he would be personally liable to pay all the costs and charges occasioned in consequence thereof. In support of the demurrer it was urged, that the appellants' demand was plainly a demand at law, as they had nothing to prove but their interest, and the loss of the ship, which were facts proper to be tried by a jury. There was no equity suggested by the bill, but a pretended difficulty to produce witnesses: and that their trustee refused to permit them to bring an ac tion in his name: that the former objection might with equal reason be suggested in almost every case of a policy of insurance; and the latter appeared manifestly to be thrown into the bill, merely to change the jurisdiction, and it was in a great measure falsified by the trustee's answer, for he did not say that he ever refused, but only that he did not care to permit his name to be made use of. If bills of this kind were encouraged, it would be easy to bring all sorts of property to be tried in a court of Equity. Upon these reasons, Lord King allowed the demurrer; and upon an appeal to the House of Lords, after hearing counsel upon it, it was ordered and adjudged, that the same should be dismissed; and the order complained of, affirmed. There may, it is true, be cases, where an application to a court of Equity on the part of the insured, is strictly proper, and will be entertained. For instance, if the trustee in a policy of insurance do actually refuse his name to the cestui que trust in an action at law, there may be some pretence for going into a court of Equity, as Lord Hardwicke has once observed. Or if, from a concurrence of circumstances, the persons, whose testimony is requisite to the decision of some disputed facts, reside abroad, the Court of Chancery will grant a commission to examine those witnesses. But it is not upon a mere general trust, or the loose suggestions of any of these facts, that this extraordinary interposition will take place. There are also cases, in which the insurers may go into Equity, to obtain injunctions to stay the proceedings against them |