the insurers who have signed the policy, or (as it is technically called) a special assumpsit. Two counts upon the same policy are not allowed. But a count upon a policy, and a count for money had and received to recover back the premium upon a contract implied by law, are allowed. R. G. H. T. 4 Will. IV. No. 5. The two insurance companies, namely, the Royal Exchange and the London Assurance, having been, in consequence of stat. 6 Geo. I. c. 18, incorporated by several charters granted, and having a common seal affixed to all their contracts, the proceedings against these companies must be by action of covenant or debt.

The policy must be stated in the declaration, and it must be alleged, that it was signed or subscribed with the name of the insurer against whom the action is brought; that in consideration that the assured had paid to the defendant the premium, the defendant had undertaken to indemnify the assured against the losses specified in the policy; that the goods, wares, and merchandizes, were laden on board the ship to the amount of L- (i.e. the value insured) (29); and further it must be alleged, that the plaintiffs were interested therein, unless the insurance be on a foreign ship, in which case an averment of interest is not necessary (30).

The

(29) In an action on a policy of insurance of indigo and bale goods, after setting out the policy, it was averred in the declaration that divers goods were loaded on board, and that the policy was made on the said goods; on special demurrer, because it was not averred, that the goods stated to have been loaded on board were indigo or bale goods, the court observed, that the allegation, in the declaration, that the policy was made on the goods put on board, completely answered the objection taken, since that could not be true, unless indigo or bale goods were loaded on board, which it would be necessary for the plaintiff to prove at the trial. De Symons v. Johnston, 2 Bos. & Pul. N. R. 77.

(30) Whether, in such case, it may be necessary that any allegation as to the property in the ship should be made on the part of the plaintiff, or whether it be not incumbent on the defendant to show that the property is not insurable within the statute 19 Geo. II. c. 37, s. 1, is a question which has not been solemnly decided. In several cases, where actions have been brought on foreign ships, averments as to the property have been inserted in the declaration. In Crauford v. Hunter, 8 T. R. 15, it was averred, that the ships insured were not belonging to his Majesty, or any of his subjects, before or at the time of the making the policy, or at the time of the loss. In Nantes v. Thompson, 2 East, 385, the averment was, "that the ship was not, at the time of effecting the policy, nor of the happening of the loss, nor at any other time, the property of the king, or any of his subjects." In neither of these cases was any objection made to the form of the averment; but in Kellner v. Le Mesurier, 4 East, 396, (where an insurance was made in England on the ship Princess Louisa, lost or not lost, "at and from Lisbon to Cadiz, &c.") the averment being that the ship was not, at the time of making the policy, nor of the hap

declaration then proceeds to state, that the property insured was lost, and by what means it was lost, so as to bring the case within some or one of the perils specified in the policy, and thereby intended to be insured against; as by the barratry of the master or mariners, &c.

It is necessary to show who are the real contracting parties, and to describe truly the interest on which the policy is effected. Therefore, if A. and B., jointly interested in a ship, effect an insurance, and there be two counts, the one averring interest in A. and the other averring interest in B., the plaintiff can recover on neither count (g). If the plaintiff should allege in the declaration (h), that there was a total loss, and lay his damages accordingly, evidence of a partial loss will maintain the declaration, and plaintiff may recover the amount of his real loss. If there has been a double insurance (31), then it will be proper to consider against which of (g) Cohen v. Hannam, 5 Taunt. 101. (h) 2 Burr. 904; 1 Bl. R. 198.

pening of the loss, the property of the king, or any of his subjects, there was a special demurrer, assigning for cause that the declaration did not contain an averment of interest, and that it did not appear that the ship, at the time of her departing from Lisbon, or at the beginning of the adventure insured, was not the property of the king, or any of his subjects. It was contended, on the part of the plaintiff, that supposing the allegation in question to be insufficient, yet it might be rejected as surplusage, for it was not necessary to make any allegation at all on the subject, and that the onus lay on the defendant to show, that the property was not insurable in virtue of the provisions introduced by the statute 19 Geo. II. c. 37, s. 1. The court being of opinion in favour of the defendant, on another ground of objection, declined the consideration of the question as to the averment.

Action lies in name of person who makes insurance, though made for the benefit and on property of another so averred in declaration. Famin and another v. Cawthorn, B. R. H. 22 Geo. III. B. P. B. 194; Dampier MSS. L. I. L. See Fitzgerald v. Poole, Law of Bills, 251, like declaration.

(31) Double insurance is, where there are two insurances made by the same person on the same risk, whereby the assured proposes to receive the said sum twice for the same loss, or, in other words, a double satisfaction. The policy of the law, however, will permit the recovery of a single satisfaction only. But although the assured is not entitled to two satisfactions, yet in an action upon the first policy, he may recover the whole sum insured *. Whether in such case the first insurers may recover a rateable satisfaction from the other insurers, seems to be a vexata quæstiot. See further on the subject of double insurance, Godin v. London Assurance, 1 Burr. 489; 1 Bl. R. 103.

*Newby v. Read, 1 Bl. R. 416.

+Aff. Newby v. Read, ubi sup. ; Rogers v. Davis, Beawes, 242; Davis v. Gildart, all decided at N. P., by Lord Mansfield. Neg. African Comp. v. Bull, 1 Show. 132.

the underwriters (as the best man or in the best circumstances,) the action shall be brought.

It is immaterial to aver interest at any day previous to the commencement of the risk. In a declaration on a policy on freight, if it be averred that the plaintiff was interested at the time of the ship's sailing, or that the policy was made on a certain day, and that afterwards, on a subsequent day, the plaintiff acquired an interest, it will suffice (i). A change in the interest after the policy is effected, much less after the loss has happened, cannot be set up as an answer by the underwriters against a claim for such loss (k). This however must be taken to mean that the assignment of the goods makes no difference, provided the parties keep the contract of insurance alive for the benefit of the assignee (1); and a person who assigns away his interest in a ship or goods, after effecting a policy of insurance upon them, and before the loss, cannot sue upon the policy; except as a trustee for the assignee, in a case where the policy is handed over to the assignee upon the assignment, or there is an agreement that it shall be kept alive for his benefit (m).

A person who has several interests in a cargo, viz. as partner in ths, as consignee of the whole, and as having a lien on the whole for advances, may protect them all by one insurance, without expressing in the policy the number or nature of his interests (n). Although the subject-matter of the insurance must be properly described, the nature of the interest may in general be left at large. Hence, an insurance "on goods" is sufficient to cover the interest of carriers in the property under their charge (o). Joint owners of property insured for their joint use and on their own account, cannot recover upon a count on the policy averring the interest to be in one of them only (p).

Of the Pleadings.

The action of assumpsit being that form of action which is most usually brought upon policies of assurance, the defendant may of course plead any plea which the law permits to be pleaded to that action; as to which see ante, p. 121, and new rules there. As to the actions of debt and covenant, (which are the only forms of action which can be adopted in cases where the two insurance companies are defendants,) it has been provided by stat. 11 Geo. 1. c. 30, s. 43, "that in all actions of debt against either of the said corporations, or upon any policies of insurance under their common seal, it shall be lawful for them to plead generally, that they owed

(i) Per Cur., Rhind v. Wilkinson, 2 Taunt. 242, 3.

(k) Sparkes v. Marshall, 2 Bingh. N. C. 776.

(1) Per Abinger, C. B., in Powles v.

Innes, 11 M. & W. 12.

(m) Powles v. Innes, ub. sup.
(n) Carruthers v. Sheddon, 6 Taunt. 14.
(0) Crowley v. Cohen, 3 B. & Ad. 478.
(p) Bell v. Ansley, 16 East, 141.

nothing to the plaintiff in such action; and in actions of covenant upon such policies, to plead generally, that they have not broken the covenants in such policy contained, or any of them. And if issue be joined thereupon, it shall be lawful for the jury, if they see cause, to find a verdict for the plaintiff, and to give such part only of the sum demanded, if in debt, or so much damages, if in covenant, as it shall appear to them, upon the evidence, such plaintiff ought in justice to have." The defendant cannot traverse any single material fact which would be included in the general issue (q).

Consolidation Rule.

In actions upon a policy of assurance against several underwriters (r), the court, by consent of the plaintiff, will make a rule on the application of the defendants, which is called the consolidation rule, for staying the proceedings in all the actions except one, upon the defendants' undertaking to be bound by the verdict in that action, and to pay the amount of their several subscriptions and costs, in case a verdict shall be given therein for the plaintiff. This rule, though attempted before without success, was introduced by Lord Mansfield into general use, to avoid the expense and delay arising from the trial of a multiplicity of actions upon the same question: and if the plaintiff will not give his consent, the court have the power of granting imparlances in all the actions but one, till the plaintiff has an opportunity of proceeding to trial in that action. On the other hand, if the plaintiff consent to the rule, the court will make the defendant submit to reasonable terms, such as admitting the policy, producing and giving copies of books and papers, and undertaking not to file a bill in equity, or bring a writ of error. It was formerly supposed that the plaintiff as well as the defendant was bound by the consolidation rule; but in Doyle v. Stewart, 4 Nev. & M. 873, the contrary was holden, Lord Denman, C. J., observing, "that the principle of the consolidation rule had always been, that as the defendants asked for a favour, they might reasonably be required to pay the price of it. It may be that in this case the consolidation rule would benefit the plaintiff, but we cannot compel a party to accept a benefit for which he does not ask."

By R. G. H. T. 2 Will. IV. Reg. 1, s. 104, where money is paid into court in several actions, which are consolidated, and the plaintiff, without taxing costs, proceeds to trial on one, and fails, he shall be entitled to costs on the others, up to the time of paying money into court.

Two actions having been brought by the same plaintiff against different defendants, on the same policy, the court consolidated

(q) Sutherland v. Pratt, 11 M. & W. 296; and see Heath v. Durant, 12 M. &

W. 438.

(r) Tidd's Prac. 635, 7th ed.

them after a declaration had been delivered in one, and an appearance entered in the other, at the instance of the defendant in the latter action, though the plaintiff objected (s).

IX. Of the several Grounds of Defence on which the Insurer may insist.

1. Alien Enemy, p. 992.

2. Illegal Voyage or Illegal Commerce, p. 992.

3. Misrepresentation, Concealment, Suppression, p. 997.

4. Breach of Warranty, p. 1001.

Express

1. Time of Sailing, p. 1001.

2. Safety of a Ship at a particular Time, p. 1003. 3. To depart with Convoy, p. 1004.

4. Neutral Property, p. 1006.

1. Not to Deviate, p. 1011.

Implied {2. Seaworthiness, p. 1016.

5. Re-assurance, p. 1019.

6. Wager Policy, p. 1020.

1. Alien Enemy.

If the parties interested in the insurance become alien enemies before the loss happens, this may be pleaded to an action brought in the name of the British agent who effected the insurance (t). But where parties interested became alien enemies after the loss happened, though before action commenced; it was holden, that the British agent, who effected the insurance, might recover against the underwriter, who had only pleaded the general issue (u). A plea stating, that plaintiff was born out of the ligeance of the king, and that the persons exercising the powers of government in the country where he was born are enemies of the king, is not good. It ought to state (x) that the plaintiff himself is an enemy.

2. Illegal Voyage, or Illegal Commerce.

Another ground of defence is, that the voyage insured was prohibited by law, or that the goods insured were intended for

(8) Hollingsworth v. Brodrick, Hollingsworth v. Collinson, 4 A. & E. 646.

(t) Brandon v. Nesbitt, 6 T. R. 23.

(u) Flindt v. Waters, 15 East, 260. See also Harman v. Kingston, 3 Campb. 153, S. P. An alien to whom a bill of exchange drawn on a British subject in England, by a British subject detained

prisoner in France during war, payable to another British subject detained there, is there indorsed by the latter, may sue on it in this country after the return of peace. Antoine v. Morshead, 6 Taunt. 237.

(x) Casseres v. Bell, Feb. 8, 1799, B. R., L. P. B. 264; Dampier, MSS. L. I. L.