A bill of interpleader has been held to lie in favor of an insurance company against the landlord of the premises which have been burnt down after having been insured by him, (and who brought an action against the office upon the policy,) and against the tenant, who filed a bill against the landlord and the office for specific performance of an agreement for a lease, and claiming a right to have the money laid out in rebuilding the premises. Per Lord Hardwicke, Motteux v. London Assu. Co., 1 Atk. 547.

3. Arbitration. The deeds of settlement of most of the companies in England contain a clause enabling the parties to refer matters in dispute to arbitration. This clause is, however, unnecessary, as without it the parties may, if they agree to do so, refer to arbitration; but if they do not agree, the authority of the supreme courts at Westminster is so transcendant that nothing but the express words of an act of Parliament can take away or abridge their jurisdiction in any case; (2 Haw. P. C. 286; 2 Marsh. on Ins. 684; 1 Wils. 129.) such a clause, therefore, will not compel a party not agreeing to a reference to have recourse to one; even a covenant between the parties to refer matters in dispute will not oust the courts of their jurisdiction and cannot be pleaded in bar to an action. Thompson v. Charnock, 8TR. 139. It may indeed, in itself, afford a ground of action against either of the parties who may violate the agreement; and if an award be made, or even perhaps if the reference be still depending, that may be pleaded in bar. In 2 C. & P. 550, ruled by Best, C. J., that in a policy against loss by fire, though there was a clause that the demand should not be paid till the amount was settled by arbitration, this did not apply to a case where the insurer denies his general right to recover. Hughes on Ins., 461.

See

The remedy for recovering satisfaction on a policy, is by action of assumpsit, when the policy is not under seal; or covenant, when it is under seal. The action at law upon a policy of insurance may be brought either by the person in whose name it was made, or by the parties beneficially interested, and on whose account the policy was effected. When the policy is effected in the name of a broker or agent, the action may be brought in his name; (2 M. & S. 426; ib. 485; 2 B. & Ald. 314; 16 East 141; 13 ib. 341; 2 B. & P. 155. Note.) And though the person whose name is used in the policy, is interested in the property insured jointly with another, the action may be brought in his separate name, the joint interest being stated in the declaration. Hughes Ins. 463. If the policy should be effected in the name of two persons, when only one of them is interested, the action may be brought in the name of that one. Marsh v. Robinson, 4 Esp. 98. When several persons are interested, the action must either be brought in the names of all of them, or in the name in which the policy is effected. In selecting the party against whom the action should be brought in the case of a double insurance, the insured will be guided by his views of their responsibility, and the circumstances of the particular case. When the subscription is affixed by an agent, the action should be brought against the principal, not against the agent.

Some of the companies in England issue their policies under seal, others not under seal. Where a company consists of numerous proprietors it has

been thought more advisable, as a further security to the insured, to issue policies under seal, thereby putting it out of the power of the insurers (parties to the deed) for pleading in abatement for want of parties, for otherwise, in strictness, every proprietor ought to be a party. The policy under seal, however, is attended with the inconvenience, as against the company, as it is not competent for them to plead the general issue, and give the special matter of their defense in evidence, but must resort to plead specially the several matters of their defense.

The form of action in cases of policies under seal is in general covenant. A general form of declaration in debt is given against the two public incorporated companies, (the Royal Exchange and the London Assurance,) by st. 6 Geo. 1 C. 18 S. 4, 11 Geo. 1 C. 30, but it is not usually adopted in practice. 3 Ch. on Pl. 325.

3. Declaration. In a declaration upon a policy under seal, the policy should be recited verbatim, together with all the proposals and conditions to which it refers, constituting a condition precedent, (see Ch. on Pl. 326.) and any material variance or omission will be fatal. (2 Marsh. 686; 3 ch. on Pl. 99.) The declaration should also state that the plaintiff at the time of making the policy, and from thence until the loss and damage, was interested; for the st. 14 Geo. 3, C. 48, S. 3, provides that the insured shall only recover the amount or value of the interest of the insured.

An averment of interest is a material allegation, which requires to be proved in substance as stated. The declaration ought to apprize the insurers of the real contracting parties. And, therefore, when two persons are jointly interested, a declaration, stating in one count that one of the parties was interested, and in another, that the other was interested, is bad, on the ground of variance, and the plaintiff cannot recover on either count. Cohen v. Hannam, 5 Taunt. 101; Bell v. Ansley, 16 East, 141. But it seems sufficient at the trial to prove that there is such a firm as E. & Co., without proving the names of the persons who compose the firm, where it is averred in the declaration that A. B., C. D., and certain persons trading under the firm of E. & Co., were interested in the policy. 1 Chitty's R. 49; 15 East, 4. A plaintiff may prove a sole interest in himself, although the policy was effected in the name of two persons, 4 Esp. 98. It does not seem to be necessary to state in what proportions several persons were interested. 6 Taunt. 14. Nor to show in what mode the interest was created, or to state specially the circumstances of the title. 5 B. & P. 309.

The declaration should also state the loss by fire, and that the fire did not happen by any invasion, &c. (or by any of the excepted cases,) and that the plaintiff thereby sustained a loss and damage to the amount of the sum claimed. It should also state his compliance with the conditions previously recited, and his payment, and the acceptance by the defendants of the premium, and that the stock and funds of the company are sufficient to pay to the plaintiff the amount of the damages sustained by him. He should then aver the breach, that he hath not in any manner been paid or made good his damage, but that the same is unpaid; that the defendants have broken the covenant made

with the plaintiff, and the damages are generally laid at a sum somewhat larger than the sum insured for.

The cause of loss must be correctly stated; for the intent of the declaration is to apprise the underwriters of the nature of the claim, and to enable them to prepare their defense. Therefore, if a loss be alleged by the perils of the sea, and it appears to have happened from barratry, the variance is fatal. So if the vessel insured be fired upon at sea by a British Ship of war, which mistook her for an enemy, this would be improperly described as a loss by the perils of the sea; 5 M. & S. 461; but if stated in the declaration according to the fact, is one of those perils, losses, and misfortunes for which the underwriters are liable under the general words of the policy. Hughes Ins. 469, 470. A statement of the particular facts which occasioned a loss may therefore be preferable, in some cases, to ascribing it to one of the perils specified in the policy; in other cases, where the law is doubtful, such a statement may be advisable, because the question of law is raised on the record, and the opinion of a higher court may be obtained if it be desired. A minute statement may also be advisable, because the facts will be admitted, in case of payment of money into court. But when the facts are stated specially and at length in one count, an additional count, if named with less particularity, may properly be introduced, to obviate the damage which might otherwise arise in point of evidence. And the proximate cause of the loss, not the remote cause, is to be principally regarded. ib. A loss stated to have happened by capture, is not sustained, in the case of a policy without interest, if the ship, after being captured and restored on appeal, proceeded on another voyage, and was afterwards lost. ib. So an averment of loss by a seizure by an armed body of rioters, is not equivalent to an averment of a loss by seizure by people to the insured unknown: for the word people in the policy means the governing power of the country. ib. It is a sufficient allegation of barratry that the goods were lost by the fraud and negligence of the master and mariners. ib. But the term barratry being a well known word of art, appears to be a more correct description, when barratry is the known cause of loss. A count on a policy stating a loss by the perils of the sea appears to be sustainable upon proof that the ship was wrecked, although this was occasioned by the barratry of the master and mariners. ib. So, a count stating a loss by capture is sustainable on proof that the ship was captured by a privateer, although this happened from a collusion between the master of the ship and the commander of the privateer, and the plaintiff might have recovered on a count stating a loss by the barratry of the master. ib.

The averment of the amount of loss is not material, provided it is framed in terms sufficiently comprehensive. For a total loss may be given in evidence under an allegation of a partial loss.

When the policy is not under seal, assumpsit is the proper form of action to be brought upon it against the insurers; and as the action in such case is founded on a particular and express undertaking made upon a consideration, upon which the law would not, by necessary implication, raise the promise

specified in the policy, the plaintiff must declare specially upon it. (2 Marsh. 687.) The contents of the declaration upon such a policy are much the same, except in matters of form, as before stated to be essential to the declaration upon a policy under seal, and, as in the latter kind of policy, the contract must be set forth with precision, and any material variance or omission will be equally fatal, (2 Marsh, 686.) it is usual to add a count for money had and received, and an account stated, to enable the plaintiff to avail himself of any balance which the defendants may have admitted to be due. (3 Ch. on Pl. 99.) And when several counts are inserted in the declaration, the second and subsequent counts may refer to the first, describing the policy as of the same tenor and effect, &c., as that in the first count mentioned.

4. Pleas to a declaration upon a policy under seal necessarily vary according to circumstances. The most usual, however, are an absolute denial that the articles mentioned in the declaration were burnt or consumed, and this plea puts the plaintiff upon proof of the quantity, quality, amount and value of his loss. Where buildings, risks, or the like, exposed to public view, are burnt, it is not usual to include them in such a plea: as the declaration usually states that the plaintiff delivered in as particular an account of the loss and damage as the nature of the case admitted of (according to one of the conditions common to most policies); the defendants also, by another plea, usually deny this fact, and this also puts in issue the quantity, quality, amount and value of the articles alleged to be consumed. It is usual also, in another plea, to allege fraud in the claim made, where the case warrants it, which it commonly does whenever the offices are driven to resist an action, and they then refer to the condition with reference to fraud and false swearing, common to all fire policies, and recited in the declaration, whereby the plaintiff forfeits all benefit under his policy, except such as the company may think fit to allow. As the conditions of most offices require the account of the loss and damage sent in to the office to be verified by affidavit, it is very usual, by another plea, to allege false swearing, in the claim made; such a plea contains the language of the affidavit, alleges that in such affidavit there is false swearing, refers to the before-mentioned condition, and states in general terms the points on which it is false. (Ellis, p. 91, 92.) See 2 Hall. 490.

Upon the subject of bringing money into Court, the reader is referred to the books of practice.

In actions of assumpsit, the general issue is the only plea usually necessary, and commonly embraces all the matters of defense which the insurers may desire to bring forward. But the same rule does not hold when the policy is by deed under seal, and the action is consequently in debt or covenant. For in an action of debt or covenant on a deed, there is, strictly speaking, no general issue, (1 Stark. R. 311,) and the plea of non est factum, though it puts in issue the validity of the deed, as such, does not, in general, enable the party sued to avail himself of the non-performance of a warranty or condition precedent, or of a matter in discharge or excuse of performance. This difficulty was likely to press with considerable weight upon the Royal Exchange, and London Insurance Companies, who being corporate bodies effected their policies under

seal. It was therefore enacted by the stat. 11 Geo. 1. c. 30. s. 43., that "in all actions of debt to be sued or commenced against either of said corporations upon any policies of insurance for the assuring of ships or goods, it should be lawful to and for the said corporations in such action or suit, to plead generally that they owed nothing to the plaintiff or plaintiffs in such suit or action; and that in all actions of covenant which should be sued, it should and might be lawful for the said respective corporations, in such action or suit, to plead generally that they had not broke the covenants in such policy,contained, or any of them, and if thereupon issue should be joined, it should and might be lawful for the jury, if they should see cause upon the trial of such issue, to find a verdict for the plaintiff or plaintiffs in such action or suit, and to give so much, or such part only of the sum demanded, if it be an action of debt or so much in damages, if it be an action of covenant, as it should appear to them, upon the evidence given upon such trial, such plaintiff or plaintiffs ought, in justice to have."

5. The PLEA of the general issue will in general enable the defendant to avail himself of any matter of defense, either arising from the illegality of the iusurance,—from an alteration of the policy after the execution,-from a noncompliance with some express or implied warranty or condition,—from the want of interest,-a misrepresentation,- —a deviation or other like cause,—from a release,- —or from a performance on his own part of the terms of the policy. But some matters of defense which are not favored in law, must be specially pleaded, such as that the insured became an alien enemy after the making of the contract or bringing the action; or the statute of limitations, when the action is not brought till after the lapse of six years. When the insured was an alien enemy at the time of making the contract, this is matter of defense under the general issue; but when the disability accrues afterwards, the fact should be pleaded specially. Hughes Ins. 474. The plea is regarded strictly, and the court will not allow it to be pleaded with any other plea. ib. The plaintiff may reply that he was resident in this country by licence. The statute of limitations may be pleaded where the loss accrued within six years before the commencement of the action; and if the captain of a ship insured, barratrously carries her out of the course of the voyage, procures her to be condemned in a vice-admiralty court, sells her, and delivers her up to the purchaser, it is only from this last event that the statute of limitations begins to run as between the insured, and the underwriters. ib. There are also certain other common matters of defense, which, if they occur, must be introduced specially upon the record,—such as tender, or the bankruptcy of the defendSo it should seem, the bankruptcy of the plaintiff, when that is material, and occurs after the commencement of the action, should be specially pleaded. ib. So a set-off must if any occur, be introduced by way of plea or notice. A set-off rarely occurs, unless either of the parties may have become bankrupt; in other cases it is not in general sustainable as the claim under a policy is a claim for unliquidated damages. And therefore where the plaintiff declared in covenant for a total loss on a policy of insurance effected in his own name

ant.