the purposes of administering justice where the property is valuable and the claimants numerous, has jurisdiction in the case of services performed at sea, (c) or between high and low water mark, (d) and in that court, one-sixth, (e) one-seventh, (ƒ) onetenth, (g) or other proportions of the property have been awarded according to the nature of the case. The court will not only fix the sum to be paid, and adjust the proportions, but also take care of the property during the suit, and direct a sale, if necessary. In fixing the rate of salvage, this court usually has regard not only to the labour and peril incurred by the salvors, but also to the situation in which they may happen to stand with respect to the property saved, to the promtitude and alacrity manifested by them, and to the value of the ship and cargo, as well as the degree of danger from which they were rescued. When a claim has been entered, a tender may be made by acts in court of a specific sum for the salvage. (h) Besides the remedy in this court, provision is made for the protection of property, in danger of being, or actually being wrecked or cast on shore, by the magistrates and officers of justice, acting with the assistance of the posse comitatus when necessary; and the salvage is to be settled by the justices of the peace in pursuance of the directions therein contained. (i)

It may be remarked that the property is only pledged to the salvors. By the law of England, a person who, by his labour, preserves or recovers goods at sea which the owner, or those entrusted with the care of them, are unable to protect and secure, is *entitled to retain the goods until a reasonable compensation is made to him for his trouble. (k) But he acquires no property therein. Nor can the lord of a manor entitle himself to salvage for taking possession of a wreck, or parts thereof, against the consent of those who are at hand and upon the spot, employed by the owner of the ship to save and preserve them. (1) In a case of capture and recapture, the mate, in the absence of the captain, has a right to hypothecate the ship, or even, if necessary, to sell a part of the cargo, for the purpose of raising money to pay salvage to the recaptors. (m) The master may hypothecate the ship and freight, (n) or the cargo (o) for this purpose; but he is not justified in selling the cargo, except in a case of extreme necessity, of necessity which supersedes the ordinary rules of law. (p) He is

(c) See 6 Rob A R 39.
(d) 1 & 2 Geo 4 c 75 8 31.
(e) 6 Rob AR 88.

(f) 1 Edw 192.

(g) 4 Rob A R 223. See the instances quoted in Abbott on Shipping, 400, et seq. (h) 1 Hagg AR 156.

(i) Vide 12 Ann st 2 c 18. 26 Geo 2 c 19, and 6 Geo 4 c 105 s 100. 48 Geo 3 c 130 s 21, 22. 49 Geo 3 c 122 s 32. 1 & 2 Geo 4 c 75 s 37. 53 Geo 3 c 87, &c. See Abbott on shipp P 3 c 10 and see as to the cinque ports, 3 Geo 1 c 13 s 5. 26 Geo 2 c 19 s 10. 48 Geo 3 c 130 and 1 & 2 Geo 4 c 76. The meaning of the terms salvage and expences free from duties in 1

.J. Habted

bound first to try, and try seriously and deliberately, every other expedient to raise money. He must raise money if he can, by drawing on his owners, or by hypothecating the ship. The sale of the cargo is only to be resorted to in the last extremity, when every other expedient has failed. (q) And it is necessary that this should be fully understood; for much abuse has prevailed in disposing of ships abroad by the authority of the master, under pretence of necessity, and sometimes under the alleged sanction of a Vice-Admiralty Court, to the great injury of ship-owners.

(q) Underwood v Robertson, 4 Campb 138.

350

*CHAPTER XIX.

OF THE PROCEEDINGS ON POLICIES.

In the reign of Queen Elizabeth, at a time when much attention was paid to the commercial improvement of this country, a tribunal was established for the express purpose of deciding causes relating to policies of insurance. At this period we are informed that much delay was experienced, and considerable expence incurred in obtaining justice against insurers, arising in part from a disuse of the ancient practice of arbitration, and in part from the multiplicity of actions which were necessary in recovering satisfaction against various underwriters. To remedy these evils, the statute 13 Eliz. c. 12. empowered the Lord Chancellor or Lord Keeper to appoint, under the great seal, a general or standing commission, to be renewed yearly at the least, for determining causes relating to policies of insurance entered within the office of insurances in the city of London, to be directed to the Judge of the Admiralty, the Recorder of London, two doctors of the civil law, two common lawyers, and eight merchants, or any five of them, who were to have power to determine causes concerning policies of insurance in a brief and summary course, as to their discretion should seem meet, without formalities of pleadings or proceedings. (a) An appeal to the High Court of Chancery was allowed by the act to a party aggrieved, on making a deposit of the sum awarded against him. (b) In the subsequent reign of Charles the Second, the number of the commissioners necessary *to constitute a quorum was reduced, and some additional powers were given to them. (c) There were, however, some defects in the constitution of this court which prevented its long continuance. Its authority extended only to claims made by the insured, not to those of the insurer. (d) The jurisdiction of the commissioners did not take away that of the superior courts; and it is said to have been held to be no bar to an action upon a policy of insurance, in the Courts at Westminster Hall, to say that the plaintiff had sued the defendant for the same cause in the Court erected by the statute of Elizabeth, and that his suit was there dismissed. (e) These defects in the constitution of the Court, aided perhaps by the national partiality which exists in this country, in favour of a trial by jury, occasioned the disuse of the powers given by the statute of Elizabeth; and matters of insurance are now cognizable, like all

(a) 43 Eliz c 12 s 1. Com Dig Merchant, E 10. 2 New Rep 304. 3 Inst 165. (b) Sec. 3.

(c) 13 & 14 Car 2 c 23.

(d) Dalbie v Proudfoot, 1 Show 396. (e) Came v Moy, 2 Sid 121.

other questions of right, before the ordinary tribunals of the country.

The ordinary remedy under a policy is in a court of law: but sometimes matters arise out of a contract of this nature, which fall peculiarly within the cognizance of a court of equity. It may be proper to premise that a clause in a policy of insurance, (f) or a covenant in a deed, (g) by which the parties agree, in case of dispute, to submit matters to arbitration, does not oust the jurisdiction of the Courts at Westminster, and cannot be pleaded in bar to an action. 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 Carrington and Payne's Rep. 550, ruled by Best, C. J., that in a policy against loss by fire, though there was a clause that 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. Verdict for the defendant

on the ground of fraud.

When a mistake has been made in the drawing up of a policy of insurance, a court of equity will direct it to be rectified according to the true intention of the parties. Thus, on a bill to rectify a mistake in a policy, which was alleged to have been made too general and contrary to the intention, Lord Hardwicke said, there could be no doubt but that the Court of Chancery had jurisdiction to relieve, in respect of a plain mistake in contracts in writing, as well as against frauds in contracts; so that, if the policy were reduced into writing contrary to the intention of the parties, on *proper proof that would be rectified. (h) In one case where two different parts of the policy were not reconcilable, but the slip or label made the meaning clear, this was considered as a plain mistake of the clerk, which ought to be rectified agreeably to the slip or label. (i) It was not considered a bar to relief that the policy had been fetched away from the office by the insurance agent of the ship-owner, who neglected to examine the policy with the slip. The mistake occurred in the description of the voyage or risk; the policy describing the adventure as beginning from the ship's departure from Fort St. George, in the East Indies, when it should have been from her arrival at St. George; and the Lord Chancellor directed two issues to be tried at law, namely, first, whether the label intended to insure the ship from her first arrival at St. George, and, secondly, whether the loss which occurred was within that adventure. But a court of equity will not decree an alteration to be made when the parol evidence of the intention of the parties is doubtful, and uncertain; nor on the account of the insured mistaking the law of the place to which the ship was warranted as belonging; especially if the bill be

(f) Hill v Holliston, 1 Wils 129.

(g) Thomson v Charnock, 8 T R 139. (h) Henkle v Royal Exchange Assurance Company, 1 Ves sen 318.

(i) Motteux v the London Assurance Company, 1 Atk 545. The slip did not

require a stamp, 35 Geo 3 c 63 s 18. 54 Geo 3 c 144; quære, whether if it had required one, and had been unstamped, it could have been admitted to rectify the

error.

filed under unfavorable circumstances, and not till after a loss has happened. (k) Nor will a court of equity entertain a suit for recovery of satisfaction under a policy, effected in the name of a trustee, unless the trustee had refused to allow his name to be used at law, when that court would compel him to allow it to be used. (1) And it is chiefly in cases of fraud, or where a discovery on oath may be essential, or a commission required for the examination of witnesses abroad, that the jurisdiction of the Court of Chancery is called into exertion. Very frequently, by its means, great frauds have been discovered to be practised on insurers; and the parties conniving at these frauds have been criminally prosecuted. (m)

*An 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; (n) 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. (0) If the policy should be effected in the names of two persons, when only one of them is interested, the action may be brought in the name of that one. (p) 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.

As a claim for the satisfaction of a loss under a policy of insurance, is a claim for unliquidated damages, an insurer cannot, unless an adjustment has taken place, be arrested and holden to bail without a judge's order, even in the case of a total loss, or of a valued policy. (q)

The remedy for recovering satisfaction on a policy, is by action of assumpsit, when the policy is not under seal; or of debt (r) or covenant, when it is under seal. The declaration in assumpsit sets forth, 1. The policy, and memorandum annexed to it, as effected by the party interested, or by an agent. 2. The defendant's subscription of the policy and promise. 3. The shipment of the

(k) Henkle v Royal Exchange Assurance Company, 1 Ves sen 317. Et vide 1 Ves jun 57. 3 Bro 27. 5 Ves 593. 6 Id 328.

(1) De Ghettoff v London Assurance Company, 4 Bro P C 436. 8 vol ed 31 p 525 fol. Mose Rep 83, 84, 193.

(m) Vide Rex v Roper, 1 Stark Rep 518. Rex v Hucks, 1 Stark Rep 521 for perjury in answers and conspiracy. Vide 4 Geo I c 12 s 3. 11 id c 29 s 6, 7.

(n) Parker v Beasley, 2 M & S 426. Hagedorn v Oliverson, Id 485. V2 B &