It is admitted by the defendants, that the plaintiffs ought to recover half the loss from them, but they say they ought to pay only half, not the whole of the loss. So that the only question is, whether the plaintiffs are entitled, upon the circumstances of this case, and upon the facts I have been stating, to recover the whole loss from the present defendants; or only the half of his loss from them, and the remainder from the underwriters of Mr. Amyand's policy. The verdict is found for the plaintiff for the whole: but it is agreed to be subject to the opinion of this Court, upon the question I have just mentioned.

pro

Where there insurers, they

are several

shall all contribute pro

"First, to consider it as between the insurer and insured. As between them, and upon the foot of commutative justice merely, there is no colour why the insurers should not pay the insured the whole; for they have received a premium for the whole risk. Before the introduction of wagering policies, it was upon principles of convenience very wisely established, that a man should not recover more than he had lost. Insurance was considered as an indemnity only, in case of a loss; and therefore the insurance ought not to exceed the loss. This rule was calculated to prevent fraud; lest the temptation of gain should occasion unfair and wilful losses. If the insured is to receive but one satisfaction, natural justice says that the several insurers shall all of them contribute ratá, to satisfy that loss against which they have all insured. ratâ, No particular cases are to be found on this head; or, at least, none have been cited by the counsel on either side. Where a man makes a double insurance of the same thing, in such a manner that he can clearly recover against several insurers in distinct policies a double satisfaction, the law certainly says that he ought not to recover doubly for the same loss, but be content with one single satisfaction for it. And if the same man really and for his own proper account insures the same goods doubly, though both insurances be not made in his own name, but one or both of them in the name of another person, yet that is just the same thing; for the same person is to have the benefit of both policies.

And if the

whole should be recovered from one, he ought to stand in the place of the insured, to receive contribution from the other, who was equally liable to pay the whole. But in this case if Tamesz was not to have the benefit of both policies in all events, then it can never be considered as a double policy."

"It has been said, that the endorsement of the bills of lading transferred Meybohm's interest in all policies, by which the cargo assigned was insured; and therefore Tamesz has a right to Mr. Amyand's policy; and that Tamesz, being the assignee of Meybohm, is the cestuy que trust of it, and may recover the money insured; and even that he may bring trover, or detinue, for the very policy itself: and it is urged from hence, that he either will or may have a double satisfaction for the same loss."

"But allowing that by the endorsement of the bills of lading and assigning the cargo to Tamesz, he stands in the place of Meybohm in respect of his insurances; yet Mr. Amyand has an interest of his own, and had actually insured the ship and goods to the amount of 1,9007. (upon both together) prior to any directions or intimation received from Mr. Meybohm, to insure for him. Various people may insure various interests on the same bottom: (as one person for goods, another for bottomry, &c.) And here Mr. Amyand had an interest of his own, distinct from that of Mr. Meybohm: he had a lien upon these very goods as a factor to whom a balance was due. And he had the sole interest in the ship; which was a part of the things insured by him. It is far from appearing, that even his last insurance (in October) was made on the account of Meybohm, or as agent for him. So far from it, Mr. Amyand insists upon it for his own benefit (as he expressly declared at the trial), and absolutely refuses to give it up, or to suffer his name to be used by the plaintiff; though he was a witness for the defendants, and was produced by them, and inclined to serve them. So that the foundation of this argument, urged by the defendants' counsel, fails them; and there is, in reality, nothing to support it. But even supposing that Mr. Amyand had made his insur

ance, not upon his own account, but as agent or factor for Mr. Meybohm, and upon the account of Meybohm; yet even then Tamesz can never come against Amyand's underwriters, or come at Amyand's policy, to his own use. For Amyand, the factor of Meybohm has possession of the policy, and appears to have been a creditor of Meybohm upon the balance of accounts between them, at the time when he made the insurance: and I take it now to be a settled point, "that a factor to whom a balance is due, has a lien upon all goods of his principal, so long as they remain in his possession." Kruger and others v. Wilcox and others, was a case in Chancery upon this point (a). It came on first before Sir John Strange, then Master of the Rolls, who decreed an account, and directed allowances to be made for what the factor had expended on account of the ship or cargo, and reserved all further directions till after the Master's report. It came on again, afterwards, for further directions, after the Master's report, before the Lord Chancellor, who was attended by four eminent merchants, whom he interrogated publicly. After which he took time to consider of it; and on the first of February, 1755, decreed, "that a factor has a lien on goods consigned to him; not only for incident charges but as an item of mutual account for the general balance due to him so long as he retains the possession. But if he part with the possession of the goods, he parts with his lien, because it cannot then be retained as an item for the general account." There was another case, in the same Court, of Gardiner v. Coleman, a few months after; in which the former case, determined, as I have mentioned, was considered as a point settled; and this latter case of Gardiner v. Coleman was decreed agreeably to it. So that Mr. Amyand, even considered as factor or agent to Meybohm, and as making the insurance upon Meybohm's account, is yet entitled to retain the policy; Meybohm being indebted to him upon the balance of the account between them; and he has a lien upon

(a) Ambler's Rep. 252.

the policy whilst it continues in his possession. Therefore, even in this view of the case, Mr. Tamesz must first have paid to Amyand the balance of his (Amyand's) account, before he could have gotten that policy out of Amyand's hands; and consequently Mr. Tamesz was very far from being entitled to the benefit of it as a cestuy que trust, absolutely and entirely."

"But if the question, Whether Tamesz could take the benefit of Mr. Amyand's policy,' were doubtful; yet here, Tamesz insured the goods with the defendants, expressly under the declaration of his suspicion, that there might have been a former consignation, and some former insurance made upon the goods by some other person: but he desired to insure the whole for his own security; and to this the defendants agreed, and took the whole premium. Amyand insisted upon his right to the whole benefit of his own policy, when he was examined as a witness: and is now litigating it in Chancery. It would neither be just nor reasonable, that Tamesz should only recover half of his loss from the defendants, and be turned round for the other half to the uncertain event of a long and expensive litigation. I do not believe there ever will or can be a recovery by Tamesz, or those who shall stand in his place, against Amyand's underwriters. However, if those underwriters are liable to contribute at all, the contribution ought to be among the several insurers themselves: but Tamesz, the insured, has a right to recover his whole loss from the defendants, upon the policy now in question, by which they are bound to pay the whole. For though here be two insurances, yet it is not a double insurance; to call it so is only confounding terms. If Tamesz could recover against both sets of insurers, yet he certainly could not recover against the underwriters of Amyand's policy, without some expense; nor without also first paying and re-imbursing to Mr. Amyand the premium he paid, and also his charges. This is by no means within the idea of a double insurance. Two persons may insure two different interests; each to the whole value; as the master for wages;

the owner for freight, &c. But a double insurance is where the same man is to receive two sums instead of one, or the same sum twice over for the same loss, by reason of his having made two insurances upon the same goods, or the same ship. Mr. Tamesz is entitled to receive the whole from the defendants, upon their policy; whatever shall become of Mr. Amyand's policy: and they will have a right, in case he can claim anything under Mr. Amyand's policy, to stand in his place, for a contribution to be paid by the other underwriters to them. But still they are obliged to pay the whole to him. Therefore, upon these grounds and principles in every light in which the case can be put, we are all of us clearly of opinion, that it is right, as it now stands for; and that the postea must be delivered to the plaintiff."

SECTION VI.

OF THE PROCEEDINGS IN THE ACTION.

HAVING in the seventeenth section of the first Part of this Treatise shewn how policies are in practice actually made, and having likewise shewn how the accounts are settled between the assured, the broker, and the underwriter, and what has been settled by the Courts as to the validity in law of passing such accounts between the three parties; in the present section it is my object to point out, in the case of either party disputing the payment demanded by the other or disputing as to the character of the loss, which of course makes all the difference in the payment, what steps and proceedings will be necessary for either to take, in the one case to recover by law what the one party claims, and in the other in order to resist it; or in any case, where either of the parties thinks that he has a legal claim against the other.

The relief which, by the law in this country is settled, is generally by an action at law. Though there are cases where either party may, and sometimes does go to a Court of