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effected the second policy, and therefore was under no obligation to give notice thereof. The assignee was then the owner, and the supreme court have decided that the omission to give notice of the second policy was not, under the circumstances of the case, a good defense; that judgment has been acquiesced in by both parties; and as no other action can be brought for the same liability, it could not be a defense any where. ib.

Upon a double insurance, though the assured is not entitled to two satisfactions, yet in the first action, he may recover the whole sum insured, leaving the defendant to recover a rateable satisfaction from the other insurers. In such cases the policies are considered as making but one insurance. The insured may sue the underwriters on both policies; but he can only recover the real amount of his loss, to which all the underwriters shall contribute in proportion to their several subscriptions. Lucas v. The Jefferson Ins. Co., 6 Cowen, 635.

Re-insurance both on Marine and fire policies is a valid contract; and a corporation authorised "to make contracts of insurance against loss by fire of any houses or buildings whatsoever, and of any goods, chattels or personal estate whatsoever" was held to include the power to contract for re-insurance. N. Y. Bowery F. Ins. Co. v. N. Y. Fire Ins. Co., 17 Wend. 359.

A contract of re-insurance is not prohibited by the principles of the common law. 2 Mass. 176; New York Bowery F. Ins. Co. v. N. Y. F. Ins. Co., 17 Wend. 359.

A stipulation in the policy, that notice of any previous policy shall be given, means previous insurances by the party insuring. Tyler v. Etna F. Ins. Co.,

12 Wend. 507.

In a contract of re-insurance, the policy was in the common form except the word re-insure was substituted for insure; and the party insured was a corporation as was also the insurer, who agreed to re-insure the former company against loss or damage by fire to the amount of $3000 on the stock of dry goods and ready made clothing, the property of J. M., contained, &c. Held, that this like the first contract, was an insurance of the goods of Mortimer The persons insured in the two policies were different; but the subject itself was the same in both. N. Y. Bowery F. Ins. Co. v. New York F. Ins. Co., 17 Wend. 359.

Preliminary proofs in cases of re-insurance require only on the part of the re-insured immediate notice to the defendants of all the proceedings of the original insured, including notice of the judgment (if any) which has been recovered on the original policy, and the fact that the plaintiff had paid the money; for this is in the words of the condition of the policy—" as particular an account of their loss and damage as the nature of the case would admit. ib. And the oath of the re-insured is not required; but the oath of the original insured, in such cases, was contemplated. ib. See preliminary proofs.

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CHAPTER XIII.

OF THE RECOVERY BACK OF LOSSES IMPROPERLY PAID.

If, after a loss has been paid, the insurers discover that there was fraud in the original contract, or that there were circumstances attending the loss which, if known at the time, the loss was claimed and paid, would have justified them in resisting the demand, they may, it appears, maintain an action for money had and received to their use, to recover back the sum improperly demanded and paid ; but if at the time they paid the money, they knew, or might upon inquiry have been informed, of the grounds upon which they could have resisted the claim, they cannot afterwards recover it back, for this would open a door to infinite litigation. It seems too, as Mr. Sergeant Marshall conceives, (2 Marsh. 740; Bilbie v. Lumley, 2 East. 469) that if even after the insured has recovered the loss by process of law, the insurers receive intelligence of fraud i which they could not possibly have known whilst the suit was depending, they may, in that case, maintain an action to recover back the money. (Emerigon, chap. iv. s. 6.) If money be actually paid, it cannot be recovered back without proof of fraud; but a promise to pay, as by an adjustment, is not binding, unless founded on a previous liability. (Per Ld. Ellenborough, Herbert v. Champion, 1 Camp. 134.)

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These observations are applicable to insurance against fire as well as to marine insurances.

For the recovery of Losses.-The revised statutes in Massachusetts provide (p. 322 s. 18.) that if any insurance company shall be under liability for losses to an amount equal to their capital stock, and the president or directors after knowing the same, shall make any new or further insurance, the estates of all, who shall make such insurance, or assent thereto, shall be jointly and severally liable for the amount of any loss, which shall take place under such insurance. The General law of Massachusetts in regard to Mutual insurance companies provides (R. S. s. 32.,) that when goods sufficient cannot be found, to satisfy any execution issued against them, upon a judgment recovered on any policy made by them, and the said corporation have goods or estate to satisfy such execution, and the directors shall neglect or refuse to pay the same, or if the directors shall, for thirty days after judgment recovered refuse or neglect to make such an assessment as they may be authorised to make therefor, and to deliver the same to the treasurer for collection, or if they shall neglect or refuse to apply such assessment, when collected, towards satisfying such execution; then and in either of the cases aforesaid, the directors shall be personally liable for the whole amount of the execution. See same stat. for further provisions.

PART II.

INSURANCE UPON INLAND WATERS.

A policy on rivers and inland waters is properly a Marine policy. By Story, J. 11 Pet. 213. And the doctrine of Marine Insurance has been held to apply to Steamboats on Rivers. ib.

Insurances of this nature, are governed in general by the principles applicable to both Marine and Fire Insurance. Consequently the cases already cited as applicable to the latter, will in general apply to insurance upon Inland Waters.

1. Of the persons insured.

It has been adopted as a general rule, that no insurance can be effected on the behalf of an alien enemy. And when an individual resides and carries on trade in an enemy's country, he is considered as for all civil purposes as adhering to an enemy. The doctrine applies equally to an American and to a neutral. If, however, the residence of an American is by compulsion, it is different. Some evidence therefore seems to be necessary as to the purposes of the residence or the place of the birth. See Hughes 1 et seq.

If a person has an interest at risk, he has a right to indemnify himself against loss by causing himself to be insured. 3 Mass. 137. The charterer of a vessel who has not made advances cannot insure the freight of the vessel eo nomine; for he has no interest at risk. 1 Hall, 452.

The owner of the vessel has the insurable interest in the freight and not the charterer, who is to pay it. 1 Hall, 325. But the better opinion seems to be that the charterer may insure in general terms under the name of freight the advances he makes the ship-owner. The actual proof of the advance cannot be dispensed with as proof in chief on the trial. ib.

Where the policy is effected for whom it may concern, and an action is brought in the name of the nominal party, it seems that one part owner may revoke the plaintiff's authority without affecting the right of the plaintiff to proceed in the suit for the owners. Copeland v. Mercantile Ins. Co., 6 Pick. 198.

The agents of a steamboat effected an insurance for whomsoever it might concern: Held, that a mortgagee had a right to his mortgagor's portion of the money, to be applied in payment of the mortgage. Rogers v. The Traders Ins. Co., 6 Paige, 583. In Chancery, the assignee of a chose in action must sue in his own name where the real party in interest. Where A. & B. were insured by name, and the words or whom it may concern added, with a clause

in the policy, that A. & B. might recover the whole amount insured: Held, that they were entitled to recover, although they were in truth owners of but a moiety of the building insured. Jefferson Ins. Co. v. Cotheal, 7 Wend. 72.

If the assured has an insurable interest, he may insure it without having his precise interest specified in the policy, 1 Caines, 276; 2 ib. 203; 11 J. R. 313.

Where the policy contains no words importing an interest in any other than the person effecting it, he only can recover on the policy. 5 Wend. 541; 8 ib. 144 S. C. But if a blank is left in the policy for the name of the insured, it seems that the holder of the policy may insert the name of the person intended to be insured. ib.

Where the interest of the insured is not absolute, but conditional; and arises from a lien for advances on goods "in trust or on commission," his interest is not covered by a mere insurance upon his property; they must be specified as goods held in trust or on commission ;-especially where the condition annexed to the policy declares, that goods so held shall not be covered, unless they are insured as such. Brichta v. N. Y. Lafayette Ins. Co., 2 Hall, 373.

One tenant in common, has no right, merely in virtue of such relation to cause insurance to be made on property on board of a vessel for his cotenant. Nor has a master of a vessel a right merely as master to procure insurance for the owners. 11 Pick. 85-1 Conn. 571.

A lender on bottomry may insure; and so may a consignee of the cargo, or an assignee, or indeed any one having an insurable interest. 6 Cowen, 318.

Consent given to what has been done is valid against a third person. 8 Wend. 152. But where a part owner effects an insurance in blank and the whole amount is paid to the party effecting the insurance: Held, that the other part owner cannot repudiate the contract in part and affirm another part; he must affirm the whole and bear the loss as well as gain. ib.

2. Of the property insured.

A bona fide equitable interest in property, of which the legal title is in another, may be insured under the general name of property, or by a description of the thing insured. By Parker, C. J. 13 Mass. 61. So several persons having several interests in property, may insure to the full value of that interest. ib.

The owner may insure his ship, the freight, his goods, and the profits expected to arise from them, or any of those subjects at his election, and the rights, which attach from the insurance of one, shall not be lessened or varied, in consequence of causing insurance to be made, or not to be made upon the other. 15 Mass. 341. The charterer of a ship has no interest as such, and he cannot therefore insure it eo nomine. Neither can he insure for advances on freight beyond the amount of the advance. 1 Hall, 325.

Though there is a mistake in the description, yet if it is not material to the risk, the mistake will not vitiate. 1 Wash. C. B. 145.

The owner of the cargo cannot repair the vessel on a voyage, and then cover his repairs by an insurance. 6 Cowen, 318. The ship is not bound to the cargo; for where the vessel is not pledged for the payment, there is no lien. 4 ib. 222; 5 ib. 66, S. P.

Profits are insurable.

Grant v. Parkinson, Park, 267; 16 Pick. 397.

Strangers to the original contract cannot be introduced into the contract; the party must have an insurable interest and must also be the party for whom the insurance was intended. Carroll v. Boston M. Ins. Co., 8 Mass. 515; Pearson v. Lord, 6 ib. 81.

3. Of the voyage or trade insured.

Voyage. The insured for a trading voyage is bound to carry on that trade with usual and reasonable expedition, otherwise their conduct will amount to a deviation, and discharge the policy. 2 Park, Ins. 468; 1 Marsh. Ins. 194; 3 Dougl. 39; 4 M. & P. 540; 6 Bing. 716.

The ship must proceed on her voyage to her destined port, in the shortest, safest, and most usual course; 3 J. R. 352; not deviating unless there be a necessity, 19 Mart. R. 126.

Where the insurance is to several places in succession, the vessel may proceed to any of the places named in the policy without beginning the series, and thence return to her port of discharge under the policy; for it would be of no benefit to either party to oblige her to go to more ports than the purposes of the voyage make necessary. 5 Pick. 89. If she is authorised to touch at a port, she may there take in or discharge her cargo, without its being considered a deviation, if there be no delay or change in the risk. 4 Pick. 471; 3 Wheat. 159; 2 J. R. 264; 3 Mass. 415; 6 Pick. 172.

Insurance from New York to Lynn, with leave to call at Newport, Held, that it was no deviation for the vessel to discharge at Newport, and put into another port from necessity, where she took in a deck load, there being no change in the voyage, or change in the risk. 5 Pick. 51.

→ A designed deviation will not vitiate, where the termini of the voyage described in the policy, and of the intended voyage remain the same. 1 J. C. 184; 2 Caines, 274; 3 Cranch, 384; 11 J. R. 241.

On time. An insurance on goods laden or to be laden on board during the term of six calendar months, without specifying any voyage in particular, was held to be the same as if a trading voyage had been in terms mentioned. 3 Wend. 283. And where the policy is on a trading voyage on time merely, without reference to any particular voyage or specified ports of lading or delivery, Held, that the insured may change the cargo as often as he pleases while the vessel is laying in a port where part of the cargo is disposed of in accordance with the general objects of a trading adventure; and although it might have been the intention of the master when he landed and sold a part of the cargo at a particular place, to have disposed of the whole there also, he had a perfect right, so long as a part of the cargo remained on board, to change his intention and go on with that part of the cargo to some other port.

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