which annuity he had bequeathed to persons not parties to this insurance, having made the plaintiff executor of his will, and directed him to make assurance. Lord Kenyon thought this a sufficient interest in the executor to support the action. The cause proceeded, therefore: but the defendant had a verdict afterwards upon a different ground. But if after the death of the debtor, his executors pay the debt, the creditor cannot afterwards recover upon the policy, although the debtor died insolvent, and the executors were furnished with the means of payment from another quarter than the estate of their testator. others v. This point was decided in an action brought by Messrs. Godsall & Godsalls, coachmakers, against the directors of the Pelican Baldere & Life Insurance Company, on a policy on the life of the late others, Right Honourable Wm. Pitt; and the declaration averred 9 East, 77. that the plaintiffs were interested in his life at the time of making the insurance, and till the time of his death to the amount of the sum insured. One of the pleas, and the material one stated, that the debt due to the plaintiffs was after the death of Mr. Pitt, and before the exhibiting of the plaintiffs' bill, fully paid to the plaintiffs by the Earl of Chatham and the Lord Bishop of Lincoln, executors of the will of Mr. Pitt. Issue was taken on the fact of payment by the executors. Upon the trial of this cause before Lord Ellenborough a case was reserved for the opinion of the Court, stating that Mr. Pitt died on the 23d January 1806; that the defendants were served before Trinity Term with process issued on the 3d June 1806: that Mr. Pitt, at the time of the execution of the policy, was indebted to the plaintiffs, and continued so till his death in upwards of 500l. the sum insured, and died insolvent. That on the 6th March 1806, the executors of Mr. Pitt paid to the plaintiffs, out of the money granted by parliament for the payment of Mr. Pitt's debts, 1109l. as in full for the debt due to them from Mr. Pitt. After argument at the bar, and time taken to deliberate, the judgment of the Court was pronounced by a Lord Ellenborough. "This was an action of debt on policy of insurance on the life of the late Mr. Pitt, ef fected fected by the plaintiffs, who were creditors of Mr. Pitt, for the sum of 500l. The defendants were directors of the Pelican Life Insurance Company, with whom that insurance was effected. (His Lordship, after stating the pleadings and the case, proceeded.) This assurance, as every other to which the law gives effect, (with the exceptions only contained in the 2d and 3d sections of the stat. 19 Geo. 2, c. 37). is in its nature a contract of indemnity, as distin guished from a contract by way of gaming or wagering. The interest, which the plaintiffs had in the life of Mr. Pitt, was that of creditors, and the probability of loss which resulted from his death. The event, against which the indemnity was sought by this assurance, was substantially the expected consequence of his death, as affecting the interest of these individuals assured in the loss of their debt. This action is in point of law founded on a supposed damnification of the plaintiff, occasioned by his death, existing, and continuing to exist at the time of the action brought: and being so founded, it follows of course, that if, before the action was brought, the damage, which was at first supposed likely to result to the creditors from the death of Mr. Pitt, were wholly obviated and prevented by the payment of his debt to them, the foundation of any action on their part, on the ground of such insurance, fails. And it is no objection to this answer, that the fund out of which their debt was paid did not (as was the case in the present instance) originally belong to the executors, as the part of assets of the deceased: for though it were derived aliunde, the debt of the testator was equally satisfied by them thereout; and the damnification of the creditors, in respect of which their action upon the assurance contract is alone maintainable, was fully obviated before their action was brought. This is agreeable to the doctrine of Lord Mansfield in Hamilton v. Mendes, 2 Burr. 1210, The words of Lord Mansfield are," The plaintiff's "demand is for an indemnity: his action then must be found❝ed upon the nature of the damnification, as it really is at the "time the action is brought. It is repugnant, upon a contract "for indemnity, to recover as for a total loss, when the event "has decided that the damnification in truth is an average, or "perhaps no loss at all. Whatever undoes the damnification "in the whole, or in part, must operate upon the indemnity in "the same degree. It is a contradiction in terms to bring an " action "action for indemnity where, upon the whole event, no damage "has been sustained." Upon this ground, therefore, that the plaintiffs had in this case no subsisting cause of action in point of law, in respect of their contract, regarding it as a contract of indemnity, at the time of the action brought, we are of opinion that a verdict must be entered for the defendants on the first and third pleas, notwithstanding the finding in favour of the plaintiffs on the second plea." The remaining observations and rules upon this subject are very few and short: because those general rules and maxims, upon which so much has been said with regard to insurances in general, are also applicable to this species of them: the same mode of construction is to be adopted: fraud will equally affect the one as the other; the same attention must be paid to a rigid compliance with warranties; and the same rules of proceeding are to be followed. nard. Lord Kin- It lately became a question, in an action by a husband on a Avesen. policy on the life of his wife, whether the declarations of the wife as to her state of health, then lying in bed apparently ill, describing the bad state she was in, at her going to M. (whither she went to be examined by the surgeon preparatory to the insurance being made) down to that time, and her fear that she could not live 10 days longer when the policy would be returned, were admissible in evidence. It was held they were. Appendia, No. 3. With respect to the risk, which the underwriter is to run, V.de the this is usually inserted in the policy; and he undertakes to answer for all those accidents, to which the life of man is exposed, unless the cestuy que vie put himself to death, or he die by the hands of justice. The policy, as to the risk, generally runs in these words: "The said insurers, in consideration of the "sum paid, do assure, assume, and promise, that the said "A. B. shall, by the permission of Almighty God, live and “continue in this natural life for and during the said term, or "in case he the said A. B. shall, during the said time, or be"fore the full end and expiration thereof, happen to die by any ways or means whatsoever, suicide or the hands of jus"tice excepted, then," &c. We see, that this contract expressly says, the death must happen within the time limited, otherwise Vide ante, c. 2. p. 52. Vide ante, Patterson v. at Guildhall. otherwise the insurers are discharged. But suppose a mortal wound is received during the existence of the policy, and the person languishes till after the term limited in the contract, what says the law? Agreeably to the decision of this point, in cases of marine insurances, not only the cause of the loss, but the loss itself, must actually happen, during the time named in the policy, otherwise the insurers are not responsible. This very case was put by Mr. Justice Willes, in his argument, when delivering the opinion of the Court, in the case of Lockyer v. Offley. Suppose, said the learned Judge, an insurance upon a man's life for a year, and some short time before the expiration of the term, he receive a mortal wound, of which he dies after the year, the insurer would not be liable. But when an insurance is made upon a man's life who gees to sea, and the ship in which he sailed was never afterwards heard of, the question, whether he did or did not die within the term insured, is a fact for the jury to ascertain from the circumstances which shall be produced in evidence. Thus in an action on a policy of insurance on the life of L. Macleane, Esq. from the 30th of January 1772, to the 30th of January 1778, it appeared in evidence, that about the 28th of November 1777, Macleane sailed from the Cape of Good Hope, in the Swallow sloop of war, which ship, not being afterwards heard of, was supposed to have been lost in a storm off the Western Islands. The question was, Whether Macleane died before the 30th of January 1778? In order to establish the affirmative of that question, the plaintiff called witnesses to prove the ship's departure from the Cape with Macleane; and several captains swore that they sailed the same day; that the Swallow must have been as forward in her course as they were on the 13th or 14th of January, the period of a most violent storm, in which she probably was lost. That the Swallow was much smaller than their vessels, which, with difficulty, weathered the storm. Lord Mansfield left it to the jury, whether, under all the circumstances, they thought the evidence sufficient to convince them that Macleane died before the expiration of the time limited in the policy; adding, that if they thought it so doubt ful ful as not to be able to form an opinion, the defendant ought to have their verdict. The jury found for the plaintiff. Red. 4th ed. p. 294. These insurances, when a loss happens upon them, must be Lex Merc. paid according to the tenor of the agreement, in the full sum insured, as this sort of policy, from the nature of it, being on the life or death of man, does not admit of the distinction between total and partial losses. c. 37. s. 2. We have seen that private persons, as well as the public companies, may be underwriters upon policies on lives; and as they frequently became bankrupts after the policy was underwritten, but before a loss happened, it became a question, Whether the persons interested in such insurances could claim the money, and prove the debt, under the commission, as if the loss had happened before it issued. In the chapter im- Vide ch. 21. mediately preceding this, and in one prior to that, we took and ch. 14. occasion to observe, that in order to remedy an inconvenience of this nature with respect to marine insurances and bottomry bonds, a statute had passed allowing creditors, either on such 19 Geo. 2. policies, or bottomry and respondentia bonds, to prove their debts under the commission, as if the loss or contingency had happened prior to that event. But as the words of the amble to that section of the statute were special, referring only (a) & 633. to insurances on ships and goods, or contracts of bottomry, it was doubtful whether it extended to insurances on lives, although the words of the enacting part were very general, namely," the assured in any policy of assurance," &c. In support of this doubt it was urged, that great inconveniences would follow from extending the statute to these policies, because the risk may remain unsettled for a long and indefinite number of years. The Court, however, held, that the general words of the enacting part were not restrained by the preamble. pre See ante, P. 420. note Dougl. Rep. p. 166. note. This doctrine was laid down in an action on a policy of in- Cox v. Litard, B. R. surance on the life of J. H. Boyd, lately gone to the East Hil. 24 G.3. Indies, on the event of his dying between the 5th of April 1780, and the 5th of April 1783. The defendant pleaded, 1st, Bankruptcy generally; and that the cause of action accrued before the bankruptcy. 2dly, That the policy was made |