Decisions on the statute. On this statute it has been decided that although it be not necessary to specify in the declaration what character the person making the insurance bears, namely-whether consignor or consignee, &c. ; yet having averred in the declaration, that they answered a particular description mentioned in the statute, they were bound to prove it. Bell v. Janson (a). The statute is As this statute 28 Geo. 3, recites in the preamble, "that to receive a liberal con struction. Judgment of the Court by Buller, J. it had been found by experience that great mischiefs and inconveniences had arisen to persons interested in ships, and to persons using commerce, from the acts of 25 Geo. 3, c. 44, and that it was expedient that other and more convenient rules should be made for the regulating insurances on ships, &c., than those contained in the said statute," the Court of Common Pleas, in the case of Wolff and others v. Horncastle (b), considered themselves bound to put the most liberal construction on the statute that the words would bear. This case was an action on a policy of assurance brought by the plaintiffs, by their names and firm of Messrs. Wolffs and Dorville, "as well in their own names as for and in the name and names of all and every other person or persons to whom the same did, might, or should appertain in part or in all." The defendant underwrote the policy for 2007.: there was a total loss. "The first count of the declaration, averred that the insurance was made by the plaintiffs, as the agents of one Jockum Brink Lund, and for his use and benefit; and the plaintiffs, at the time of the making thereof, were persons residing in Great Britain, and did make the policy as such agents, and the style and firm of "Messrs. Wolffs and Dorville," inserted in the policy, was at the time of the making thereof, the usual style and firm of the firm of them the plaintiffs, and that Jockum Brink Lund was then interested in the goods to the amount insured. The verdict was found for the plaintiffs, subject to the opinion of the Court on a case. Buller, J.-" It was a real bond fide transaction, a loss has happened, and the underwriter now chooses to say, that for want of a strict compliance with the statute 28 Geo. 3, he shall be excused from paying the money. If, however, the defendant can bring his case within the statute, he has the right to do so. But has the defendant brought his case within the meaning of the statute? Has he even brought it within the words of the statute? And even if he brought it within the words and not within the meaning, I should be clearly of opinion for deciding against him; and, in so doing, I should follow the directions of the statute, which in the last clause enacts, 'that every policy or policies of insurance made and wrote contrary to the true intent and meaning of this act, shall be null and void." Let us see, then, whether the plaintiffs do, or do not, come within any of the descriptions of persons in the last statute. These descriptions are four-(1) the consignor; (2) the consignee; (3) the person receiving; (4) the person giving the order. It is clear that the plaintiffs are not the consignors: but I am not so sure that they are not the consignees. It is true that the goods were originally consigned to another person, but the case must be considered as it stood at different times: though the Cudbear Company were the consignees at first, it does not follow that they continued to be so. signee? "What is a consignee? A person residing at the port of What is a condelivery, to whom the goods are to be delivered when they arrive there. Lund does not trust the Cudbear Company without securing himself: he therefore sends the bill of lading to the plaintiffs, who are his general agents, in order that he may be secure of being paid for his goods. If the Cudbear Company had received the goods, they would have been the consignees, but they refused to receive them then who was entitled to receive them? to whom could the right belong but to the persons who had the bill of lading, and who were the general agents of the consignor. From the moment the Cudbear Company refused to have any thing to do with the goods, the plaintiffs became the consignees. If this be so there is no objection to the policy, and I am satisfied I do not carry this instruction too far, when the justice of the case is with the plaintiffs. But there are two other characters mentioned in the act. The next is the person who receives the order to insure; let us see whether these plaintiffs had not an order to make insurance. The goods were originally intended for the Cudbear Company, but they were sent accompanied with a letter, which stated in the clearest terms, that Lund intended that they should be insured. The Cudbear Company having refused to take the goods, could the plaintiffs, who were the general agents of Lund, could any man of sense read his letter and doubt of his intentions? In giving his reasons, he says, that the season is so far advanced, he does not think it safe to send the goods without their being insured. The plaintiffs must have been blind if they had not seen it was his intention to have them insured. Then what was his intention? Why that they should be insured. It is agreed that a general agent has a right to exercise his discretion for the benefit of his principal: he must act on the spur of the occasion, and if nothing had passed, I have doubts whether the consignor would not have been liable to pay the premium. But the plaintiffs inform the consignor of their having made the insurance, and he highly approves their acts, which brings the case within the maxim that 'omnis ratihabitio retrotrahitur mandato priori æquiparatur.' I am clear therefore, that the plaintiffs were the persons who received the order to make this insurance within the description of the act of Parliament. But there is still another character to be considered; the statute mentions in the last place, the person who gives the order to make the insurance. Now in my opinion, it is impossible to state a case that comes more directly within the act of Parliament than this. Who were the persons immediately concerned, who immediately employed the broker, who gave the immediate order for insurance, but the plaintiffs? It appearing therefore that they come within the words of the act of Parliament, the case stands clear of all objections, and is in law, conscience, and justice with the plaintiffs." The other Judges, Heath, J., Rooke, J., concurred. Postea to the plaintiffs. In the case of Lucena v. Crauford (a), in error in the House of Lords, from the Court of King's Bench, the action was on a policy of assurance, and the first count averred that the king, by virtue of the powers vested in him by 35 Geo. 3, c. 80, had issued his commission, under the Great Seal, directed to certain commissioners, naming them and nominating them commissioners for the purposes mentioned in that act, and authorizing them to take into their possession ships and goods belonging to subjects of the United Provinces, which had been or might be detained in or brought into the ports of this kingdom, and to manage, sell, and dispose of the same to the best advantage, according to such instruction as they should receive from the king in council. Before any declaration of war against the United Provinces, one of his Majesty's ships took several Dutch East Indiamen, and carried them into St. Helena; the commissioners, with the consent of the Lords of the Treasury, insured them "at and from St. Helena to London." War was soon after declared against the United Provinces, and the ships were finally condemned as prize to his Majesty, "as having belonged, when taken, to the subjects of the United Provinces, since become enemies." Upon a loss happening, the commissioners declared on the policy, and averred the interest to be in the king. The verdict was found for the plaintiffs below, and the Lords, on the writ of error, decided that the action well lay. At the trial the Lord Chief Justice Ellenborough directed the jury that, upon the evidence, the plaintiffs might maintain the issue as to the second count, and that his Majesty, at the times when the ships and goods sailed from St. Helena, and when the policy of insurance was made, and from thence until, &c., at the time of the loss of the Houghley and Surcheance, had an insurable interest in the said ships and goods; and further, that if any of his Majesty's subjects make an insurance for the benefit and on account of his Majesty, his Majesty may adopt and ratify the same; and that the insu (a) 1 Taunt. 325. If any of his Majesty's subjects effect for the benefit of his Majesty, his Majesty may adopt and ratify it. Where a party assigns away his interest in a ship or goods, after having made a policy of insurance on them, he can sue on the policy only in one case (as a trustee) where the policy is him by agreement on the assignment. rance in the second count was adopted by his Majesty. And the jury found their verdict for the plaintiffs as to the second count, with £800 damages. The same doctrine was laid down in the case of Stirling v. Vaughan (a). In a very recent case in the Court of Exchequer, of Powles and others v. Innes (b), a question was discussed and settled by the Court (consisting of Lord Abinger, C. B., Parke, B., and Gurney, B.,) whether an assured, who assigns away his interest in a ship or goods, after making a policy of insurance upon them, could sue upon the policy; and it was held by the Court that he could sue only in one way, viz., as a trustee for the assignee, in a case where the policy is handed over to handed over to him, upon the assignment. Lord Abinger says," The contract of insurance was originally only a contract of wager; since the Legislature has adopted it, it is a contract of indemnity only, and nobody can recover who is not really interested. The policy is but a 'chose in action,' and cannot pass merely by the assignment of the ship." And Parke, B., says,-" If the policy had been handed over with the bill of sale, or there had been an order to the brokers to hand it over, the case would be different-then the parties might sue as trustees for the purchaser; but we cannot infer that, no facts being stated in the case to warrant such an inference" (c). In the case of Palmer v. Marshall (d), where it was alleged in the declaration that the plaintiff, by M'Ghie and Page (his agents in that behalf), caused to be made a certain policy of insurance, it was held by the Court of Common Pleas that it was necessary for the plaintiff to prove that M'Ghie and Page were his agents. Upon this act it has also been held that it is not necessary, where a policy is made by an agent, to add the word agent, or any other description, to his name in the policy itself (e); and it has also been decided that a (a) 11 East, 623, post. (c) See Sutherland v. Pratt, 12 (d) 8 Bing. 82. (e) De Vignier v. Swanson, B. R. Mich. 39 Geo. 3. Park Ins. 17. |