ship in a very damaged state, in consequence of which they are liable to ignite and generate a fire, by which they are consumed, the underwriters are not liable for the loss. The underwriters are not discharged by the circumstance of the goods having been damaged; but if in consequence of the damage which the goods have previously received, they consume themselves, the underwriters are not liable.

In the two leading cases Lynch and another v. Daryell and another, 3 Bro. P. Ca. 497, and the Sadlers' Com. v. Badcock and others, 2 Atk. 554, it is held, that policies against fire are not insurances of the specific things mentioned to be insured, and which attach to the reality or pass with the same as incident thereto by assignment, but they are special agreements with the persons insured, against such loss or damage as they may sustain by the destruction or partial damage of the thing upon which the insurance is predicated; and it follows, that the party for whom the insurance is made must have an interest in the premises at the time of the insurance, and at the time of the loss, or he can sustain no loss against which the contract will entitle him to indemnity ; but it does not follow as a consequence of that attribute of the contract that the policy must be a valued policy; or, in other words, that the sum in which the owner is insured is the sum which he will, in case of a total loss, be entitled to recover. The reverse would be the more natural inference, that the recovery of the assured must be regulated by the value of the property; for if the policy be a personal agreement to indemnify him against loss or damage, his claim will be satisfied by the reimbursement to him of the actual value of the property at the time, which is the true amount of his loss by the peril, and such is the doctrine of those cases. In both of them the policy is held to be a contract to make good the loss which the contracting party himself should sustain; but no intimation is given of the right of the assured to the specific sum mentioned in the policy in the case of a total loss, as liquidated damages, or an agreed indemnity. On the contrary, that sum is treated as the extent of the insurers liability, and not as the measure of the assured's claim.

The contract is to pay the amount of the actual loss or damage, but with the restriction of the amount of the payment to the sum mentioned in the policy. By Jones, C. J. in 1 Hall, 41.

And assuming that the principle of valuation may, by the mutual agreement of the parties, be applied to an insurance against loss or damage to property by fire, still the policy must be specially adapted to the case, and must express on the face of it the assent of the parties to the valuation agreed upon between them. ib.

The marine policy also is a personal contract, and when made on the assured's own account, the terms of it are that the assured causes himself to be insured, and makes insurance in a given sum, for a specific voyage, or term of time upon the ship or the goods on board of her, against the perils of the sea and other enumerated risks. The marine policy in this form thus clearly resembling that of the fire policy in the usual form, is always understood, and held to be an open policy, and to entitle the insured in case of loss, whether

total or partial, to an indemnity and recompense to the amount of his actual loss by the perils from which the contract professes to protect him. There may be insurable interests, such as profits in the case of Mumford v. Hallet, 1 J. R. 433, for example, which must of necessity be regarded as valued at the amount insured upon them. And in such cases the policy must be considered a valued, and not an open policy; but these are exceptions to the rule. By Jones, C. J. 1 Hall 47, 8.

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Though the policy is a contract of indemnity, yet the extent and value of the recovery will not vary with the special and peculiar circumstances of the insured, and local advantages or disadvantages of the building, and the uses to which it is applied :—these incidental and collateral circumstances are not to enter into the estimate of value under the contract of insurance. ib. It is the tenement upon which the insurance is made; and the actual value of it as a building, is the loss of the insured in cases of its destruction by fire. To that measure of indemnity the proprietor is entitled, however unproductive the property may be, and he is entitled to no more, whatever revenue he may have derived from the tenement. ib. The intrinsic value of the property itself at the time of its destruction, is the rule by which the indemnity is to be measured, without regard to any special or adventitious circumstances which may enhance or diminish the relative value or importance of it to the insured. "It is the true and actual value of the tenement itself at the time, independently of its location, or the insecurity of the title, or terms by which it is held that the insurers agree to make good to the present proprietor in case the loss or damage by fire happens during the continuance of his ownership, and within the term of the insurance. It is of no importance whether the tenement stands upon freehold, or upon leasehold ground, or whether the lease is about expiring, or has the full time to run when the fire occurs, or whether it is renewable or not. The condition of the policy is satisfied if the title and ownership are in the insured at the time of the insurance, and at the time of the loss, and the measure of his indemnity is the amount of his interest in the tenement when destroyed by the fire, notwithstanding that the whole interest would have expired the very next day, or soon after the loss occurred." ib.

2. A clear right of action should exist against the parties subscribing or executing the policy, to the extent of the funds of the society; that right should not be confined to a mere order for payment to be made by the subscribing directors upon the general body of the directors or the company, for an action in such a case will not be maintainable against the parties executing, or the directors generally.

In Alchorne v. Saville and others, 6 Moore 200, n. the V. Chancellor requested the opinion of the Court of K. B. upon the question whether an action would lie under the following circumstances:-On the 20th of May, 1811, the plaintiffs insured a certain house and premises in which they were interested in the Hand Insurance Office. The policy was made and duly executed by T. F. N. W. and J. M. as three of the trustees and directors of the office, whereby, in consideration of the sum of 4l. 10s. the premises valued at 800l. were in

sured for the term of one year from the date thereof. The policy, after reciting that the plaintiffs had paid into the treasury of the amicable contribution or society, commonly called the Hand in Hand Contributionship or Society, for the insuring of houses and goods from loss or damage by fire, the sum above mentioned, for the purpose above mentioned, proceeded to declare as follows: "Now we, the trustees and directors of the said society whose names are hereunto subscribed, do order, direct, and appoint the directors for the time being of the society to raise and pay by and out of the monies, securities and effects of the said contributionship, pursuant and according to certain deeds and settlements," &c. The instrument, after declaring that the order thus mentioned should comprehend either a total or partial loss by fire, proceeded as follows:-"provided and it is hereby declared and agreed, that when any assignment shall be made of this policy, such assignment shall be entered in the office book within ninety days from the date thereof, &c., and also, that if, at the expiration of one year from the date thereof, the said plaintiffs shall again pay the sum of 4l. 10s. then all the conditions and agreements of this policy shall remain in full force for the further term of one year, and so shall be continued from year to year as often as the said sum of 4l. 10s. shall be paid by the plaintiffs, and the directors for the time being shall agree thereto by accepting or receiving the same. In witness," &c. The policy was signed by J. F. N. W. and J. M. three of the trustees and directors of the said office, and sealed and delivered, duly stamped and attested.

The plaintiffs having sustained a loss by fire, and the defendants having refused to pay within the time prescribed by the policy, a bill was filed in Chancery against the latter as acting trustees and directors of the office, praying that the court would decree the payment of the loss which the plaintiffs had sustained, and the above case was sent for the opinion of the Court of Kings Bench.

Lord C. J. Abbott." I can find nothing in this policy by which the defendants covenanted to pay the loss which the plaintiffs have sustained. The deed only imports that the trustees and directors for the time being who execute it, do hereby order, direct and appoint the trustees and directors for the time being to pay the loss, in case it should happen, out of the funds belonging to the society. It does not appear to me that the latter words in the policy can have the effect of making that an agreement, which upon the face of it appears to be only an order for the payment of money. It never could be intended that this instrument so prepared should have the effect of making the trustees and directors for the time being personally liable; nothing could be more difficult than for a company of this description to find acting trustees who would personally pay all the policies which the company might think fit to execute. It therefore appears to me that the only remedy that the plaintiffs have is in equity, and that they cannot turn round and treat this as a covenant at law. I admit that where a party executes an instrument and thereby says, "I agree to do so and so," he would be liable to an action of covenant, but how could a declaration in covenant be framed in this case, either against the defendants or

the parties who have executed the policy? As against the latter, no such declaration could be drawn, because the policy imports nothing but an order upon other persons to pay the loss in case it should happen; and, as against the former, supposing the instrument to have the effect of an agreement, the action would not lie, because it does not appear that they have executed it. The policy imports nothing but an order; and not an agreement; I am therefore of opinion that an action of covenant cannot be maintained." The rest of the Court were of the same opinion.

That case was cited as an authority in Andrews v. Ellison, 6 Moore, 199, which was covenant on a policy, executed by the defendants under seal, to indemnify the plaintiffs against a loss by fire. The declaration stated, that the defendants, on the 9th Dec. 1819, as three of the directors of the National Union Fire Association, made a certain deed-poll, commonly called a policy of insurance, whereby, after reciting that the defendants, as such directors had admitted the plaintiff to be a member upon the terms, covenants and conditions prescribed by the deed of settlement of the said association; and that the plaintiff had consented to become a member accordingly, and had subscribed the sum of 6s. being the consideration money for one years insurance from the 25th December, 1819, and that so long as he should continue to pay the same sum annually on that day, he should be entitled to a remuneration out of the society's funds in case of loss by fire to all or any of the property therein after mentioned; not exceeding for each item respectively the sum set against the same, viz: 2001 on his household furniture, &c. in his then brick dwelling house; it was declared, that in case of loss by fire happening to any of the above mentioned property while such subscription should be regularly deposited, the society was to pay according to the deed of settlement to the plaintiff all such loss and damage, not exceeding the sum set against each article respectively, as he might sustain thereto by fire; and it was further stipulated and thereby declared, that neither of them, the said directors who subscribed the said deed-poll or policy of assurance, nor the plaintiff, as the holder of the policy, should, as members of the said society, be subject or liable to any demand for any loss or losses, except under the articles establishing the said society as was provided by the same. The declaration then set out certain articles referred to in the policy, and subject to which it was effected, and concluded by the usual averments. Several special pleas were pleaded, and on these pleas issues were joined. The jury found under the direction of C. J. Dallas a general verdict for the plaintiff.

Upon a rule to arrest the judgment, on the ground that there was nothing on the face of the policy, or in the declaration, to import any covenant or agreement in law to support the action, or render the defendant liable to pay the loss in question. But the Court refused to arrest the judgment and discharged the rule. Ld. C. J. Dallas said :-" although there are no precise words in that instrument, still the defendants have stipulated and declared that neither of them as directors of the association, or as members of the society, should be subject or liable to any demand for loss or losses, except under the articles for es

tablishing the society, and as is provided by the same. In the reasonable construction of this stipulation it amounts to an express agreement, and the instrument may be considered as a covenant to entitle the insurer, in case of loss by fire, to receive a remuneration out of the funds of the society to the extent of such funds, as the defendants have expressly declared that the society would be responsible, but they have limited such responsibility to the sufficiency of their funds. The plain and obvious meaning, therefore, appears to me to be, that the association are liable to the extent of their funds; and consequently that the defendants, as three of the directors, have entered into an express agreement to be responsible to the plaintiff as far as the funds of the society will allow. The case is altogether distinguishable from the case of Alchorne v. Saville (supra), as here the defendants have executed the deed, but there they were not parties to it, they only ordered the directors of the society for the time being to do particular things, viz. to raise and pay out of the monies and securities of the contributionship according to certain deeds and settlements, and the Court of K. B. decided that they were not personally liable, as it was not their deed, and as they merely appointed other persons to pay a loss, in case it should happen out of the funds belonging to the society. Here, however, the defendants covenanted to pay, if the funds of the society should be adequate. That, therefore, puts an end to the question. Besides, the breach assigned by the plaintiff in his declaration is sufficient, for he states that, although the funds of the society were adequate to pay, yet the defendants refused to do so."

Mr. Justice Richardson.—“ The defendants should either have demurred, or pleaded that the funds were insufficient; but they have put a number of other pleas upon the record, imputing fraud to the plaintiff, which the jury negatived, and set him right by their verdict ; and the defendants now seek to turn him round on an objection to the declaration ; but I think it is not well founded, or at all events it is insufficient for arresting the judgment. It appears on the face of the policy that the defendants were three of the directors; that as such they admitted the plaintiff to be a member; and it then states that he should be entitled to a remuneration out of the society's funds in case he sustained a loss by fire, and that the society had funds, and were bound to pay according to the terms of the articles under which it was established. The policy also contains a declaration that the society were to pay according to the deed of settlement, and that the defendants, as directors, should not be subject to any demand for losses, except under the articles establishing the society. Under this stipulation the plaintiff was entitled to set out such articles in his declaration, and which are now properly brought before the Court. The eighth article held out that the society were liable to satisfy such loss, in case the insurer did all that was requisite of him to be done within that period. This case is wholly distinguishable from that of Alchorne v. Saville as here the substance of the policy is set out, and the deed of settlement refered to. In that case there was no sufficient words to raise a covenant by the defendants, as they merely appointed the directors for the time being to pay out of the mon