1849.

July 6.

A declaration

stated, that the

B., S., & O.,

and 500 other persons, were united in partnership, by the

name of the

business of in

REID and Another v. ALLAN.

CROSS V. THE SAME.

ASSUMPSIT. The first count of the declaration stated,

defendant and that, before and at the time of the making of policies of insurance thereinafter mentioned, the defendant and one John Brightman, one William Streatfield, and one John Owen, &c., and divers, to wit, 500 other persons whose General Mari- respective names are to the plaintiffs unknown, were united time Assurance in copartnership, in, by, and under the name, style, and Company, "for carrying on the firm of "The General Maritime Assurance Company," for surers of ships." the purpose of carrying on, and did, by and under the name, style, and firm aforesaid, carry on the trade and business of insurers of ships, goods, and merchandise from and against the perils and dangers of the seas. That the Company or copartnership during all the time aforesaid had and thence continually have had and still have a capital stock, to wit, a capital stock of 1,000,000l., which said capital stock during all the time aforesaid was and from

That the Com

pany had a capital of 1,000,000l., in

10,000 shares of 100%. each;

that the defendant was propri

etor of 100 shares, in respect of which only 51. per share had

been paid up, and 95l. per share remained due; that the plaintiffs made with the Company a policy of insurance on the body, tackle, &c. of the ship "Elizabeth," and it was agreed that the capital stock of the Company should be alone liable to make good all claims under the policy; and that no proprietor should be liable to any claim by reason of that policy, beyond the amount of his shares, in witness whereof, and that the Company were content with that insurance for 1500l., B., S., & O., for and on behalf of the Company, did then thereunto set their hands; that, in consideration that the plaintiffs, at the request of the defendant, being such shareholder, paid to the Company 941. as a premium for the insurance, the defendant promised the plaintiffs that he would become and be an insurer to them of 1500l. upon the said ship, and would perform all things in the policy on his part as such insurer to be performed; and the defendant then became and was an insurer to the plaintiffs of the sum of 15001. upon the said ship, and B., S., and O., for and on behalf of the defendant, as such insurer, duly subscribed the policy. The declaration alleged a loss by storms, and averred, that, by reason of the premises, the capital stock of the Company was liable to pay the loss; that the capital stock was sufficient to answer all claims in that action; and that the amount unpaid in respect of the shares of which the defendant was proprietor was sufficient to answer all claims in that action.Breach, non-payment. Plea, that the policy was in writing, and made after the passing of the 35 Geo. 3, c. 63; and that the defendant did not subscribe the policy, nor was the name of the defendant expressed or specified in or upon the policy, according to the intent and meaning of that Act. On special demurrer, Held, that the plea was bad in substance; for the 6 Geo. 1, c. 18, which prohibited any partnership other than the two chartered Companies from underwriting a marine policy, having been repealed by the 5 Geo. 4, c. 114, it is not necessary that the name of every individual subscriber constituting the assuring firm should be expressed on the policy; but a subscription in the name of the partnership firm is a sufficient compliance with the 35 Geo. 3, c. 63, s. 11, which requires the names of the underwriters to be expressed or specified in or upon the policy.

Also, that the defendant was liable as a shareholder, and that the declaration was good. Semble, that the plea was double, inasmuch as it put in issue the execution of the policy by the defendant and also raised the objection under 35 Geo. 3, c. 63, s. 11.

thence continually hath been and still is divided into divers, to wit, 10,000 shares, each and every ofthe shares being a certain portion of the capital stock, to wit, 1000l. of the capital stock. That the defendant at the time of the making of the several policies of assurance hereinafter mentioned, was and thence continually hath been and still is the proprietor and holder of a certain number, to wit, 100 of the shares in the said capital stock; that the defendant never hath, nor hath any person or persons whatever, at any time paid for, or in respect of, or on account of the shares of which the defendant was and is such proprietor and holder as aforesaid, the full amount of the same, but, on the contrary thereof, only a certain small sum hath been paid for and in respect of and on account of the same, to wit, the sum of 5l., for and in respect and on account of each of the said shares in the said capital stock of which the defendant was and is such holder and proprietor; and the residue of the amount of the said shares of which the defendant was and is such proprietor, to wit, the sum of 951. for each of the said lastmentioned shares, making in the whole a certain sum, to wit, 90007., hath always remained and been, and still is unpaid. That heretofore, to wit, on the 11th November, 1846, the plaintiffs, according to the usage and custom of merchants, caused to be made a certain policy of insurance in writing, purporting thereby, and containing therein, that the plaintiffs, as well in their own names &c., did make assurance, and cause themselves and them and every of them to be assured, lost or not lost, at and from twelve o'clock at noon of the 13th of October, 1846, until twelve o'clock at noon of the 13th of October, 1847, being for the space of twelve calender months, in port and at sea, at all times and in all places, the ship or vessel hereinafter mentioned, to be employed in the trade of the United States of America and the United Kingdom, including the risk of craft to and from the vessel upon any kind of goods and merchandise and also upon the body, tackle, &c., of and in the

1849.

REID

บ.

ALLAN.

CROSS

V.

SAME.

1849.

REID

V.

ALLAN.

CROSS

บ. SAME.

good ship or vessel called "The Elizabeth," whereof was master &c., the said ship, &c., goods and merchandise, &c., for so much as concerned the assured, and the said Company in that policy, were and should be valued at on hull and materials, valued at 3500l., &c. And it was declared by and between the said Company and the assured, that the capital stock and funds of the Company should alone be liable to answer and make good all claims and demands whatsoever, under or by virtue of that policy, and that no proprietor of the Company, his or her heirs, &c., should be in anywise subject or liable to any claims or demands, nor be in anywise charged by reason of that policy beyond the amount of his or her share or shares in the capital stock of the Company, it being one of the original and fundamental principles of the Company, that the responsibility of the individual proprietors should in all cases and under all circumstances be limited to their respective shares in the capital stock. (The declaration then stated, that the Company had been paid the consideration at the rate of 61. 6s. per cent., and that goods, ship, and freight were warranted free from average under 31. per cent. unless general, or the ship stranded). And by the said policy it was declared that the said insurance was on the hull and materials of the said ship. In witness whereof, and that the Company were content with that assurance for the sum of 1500l., the said John Brightman, William Streatfield, and John Owen, for and on behalf of the said Company, did then thereunto set their hands. And thereupon afterwards, to wit, on &c., in consideration of the premises, and that the plaintiffs, at the request of the defendant, then being such partner, and proprietor and shareholder of and in the said Company, then paid to the Company a certain sum, to wit, the sum of 947. 10s. as a premium or reward for the insurance of 1500l. of and upon the hull and materials of the said ship in the said policy of insurance mentioned, and then promised the defend

ant, being such partner, &c., to perform and fulfil all things in the said policy of insurance contained, on the part and behalf of the insured to be performed and fulfilled; the defendant then promised the plaintiffs, that he the defendant would then become and be an insurer to the plaintiffs of the sum of 1500l. upon the hull and materials of the ship in the said policy of insurance mentioned, upon the terms in the said policy of insurance in that behalf mentioned, and would perform and fulfil all things in the said policy of insurance mentioned on the part and behalf of him the defendant as such insurer of the said sum of 1500l. to be performed and fulfilled. And the defendant then became and was an insurer to the plaintiffs of the said sum of 1500l. upon the hull and materials of the ship in the said policy of insurance mentioned, upon the terms in the policy in that behalf mentioned; and the said John Brightman, William Streatfield, and John Owen, for and on behalf of the defendant as such insurer of the said sum of 1500l. upon the said premises in the said policy in that behalf mentioned, then, to wit, on &c., duly subscribed the said policy. The declaration then stated the interest of the plaintiffs in the ship, and that, whilst employed in the trade of the United States of America, the ship was endangered by storms, so that it became necessary to throw the goods overboard, and the ship was so damaged that it was necessary to expend a large sum in repairs; of all which premises the Company and the defendant, afterwards and before the commencement of the suit, to wit, on &c., had notice, and were then requested by the plaintiff to pay and contribute out of the capital stock and funds of the Company a rateable part or proportion of the charges aforesaid, whereby and by reason of the premises the capital stock and funds of the Company, according to the tenor and effect of the said policy of insurance, then became and were liable to pay and contribute a rateable part or proportion of the charges aforesaid, which said rateable part or proportion, according to the rate and

1849.

REID

v.

ALLAN.

CROSS

ข.

SAME.

1849.

REID

V.

ALLAN.

CROSS

V.

SAME

quantity of the sum by the said policy insured, amounted to a large sum, to wit, 2007. The declaration then stated a general average, and averred that the capital stock and funds of the Company at the time of the making of the policy of insurance were, and from thence continually have been and still are sufficient to answer and make good as well all claims and demands whatsoever, under and by virtue of the policy of insurance or incidental thereto, as all other monies sought to be recovered in this action, and to pay to the plaintiffs the several sums which the said capital stock and funds so became liable to pay to the plaintiffs as aforesaid. That the amount so as aforesaid remaining unpaid for and in respect of and on account of the said shares in the capital stock of the Company, of which the defendant was such proprietor and holder as aforesaid, at the time of the making of the said policy, was and thence continually hath been and still is sufficient to answer and make good to the plaintiffs as well all claims and demands whatsoever under and by virtue of the said policy of insurance or incidental thereto, as all the other monies sought to be recovered in this action, and to pay to the plaintiffs the said several sums which the said capital stock and funds so became liable to pay to the plaintiffs as aforesaid. The declaration then alleged that a reasonable time for the Company to have paid out of the capital stock and funds had elapsed, and assigned for breach the non-payment of the losses.

The second and third counts were in the same form upon other policies.

The defendant pleaded to the first count, thirdly, that the policy of insurance in that count mentioned was a policy of insurance in writing, and was made and entered into after the passing of a certain Act of Parliament, made and passed in the 35th year of the reign of his late Majesty King George the Third, intituled "An Act for granting to his Majesty certain stamp duties on sea insurance;