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 defendant. So 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

and averred the interest in one count to be in himself, and, in another, in himself and others, to which the defendants pleaded that a less sum was due on the policy than for a total loss, and set off monies due to them on the plaintff's bond, made before they had notice that any other than the plaintiff was interested in the policy, these pleas were holden bad. ib.; 5 M. & S. 439.

Upon the trial the plaintiff must begin by proving every material allegation contained in his declaration. If any of the facts of the case on either side have been agreed to be admitted, these admissions are reduced into writing, and signed by the attornies on both sides, and, being read, they supply the place of actual proof. (2 Marsh. 712.) The rules of evidence are in general the same in trials upon policies of insurance as in other matters, and there appear to be no cases in the books containing points of evidence peculiarly applicable to trials upon policies of insurance against fire.

Policy. The policy must be produced and proved because it is the best evidence of the contract, If the agent of the defendant subscribed the policy, the authority of the agent must be regularly proved; and this may be done by the person who subscribed as agent, or by the power of attorney, or other writings of the defendant, by which he was appointed; or it would be sufficient to show that the defendant has recognized his act on this particular occasion, or that he has recognized him on several other occasions as his agent for subscribing policies. 2 Phil. Ev. 36. Neal v. Irving, 1 Esp. R. 61. Brockelbank v. Sugrue, 5 C. & P. 21. In this last case, it was held, that a memorandum indorsed on a ship's policy of insurance for a change of voyage, and signed by an agent of the company, it was sufficient to prove that the agent had signed similar memorandums on many other policies, and that his habit was to do so, and advise the company of it; though when a new policy was required, he always sent the proposals to the company :—and that the other policies on which such memorandums had been signed, need not be produced. If it appears that the agent was appointed by a power of attorney, and if there is no evidence of any recognition of the agent's authority, it seems necessary to produce the written authority. See Johnson v. Mason, 1 Esp. R. 89. In the case of a partnership, the confession of the members of the company would be good evidence of the authority of an agent. Odiorne v. Maxcy, 15 Mass. R. 39. And the confession of one member of the co-partnership, of any fact tending to bind the whole, is unquestionably good evidence against the whole. ib. But the authority of even a general agent must necessarily be restrained to the transactions appurtenant to the business of his principal, 13 ib. 181, S. C. Posterior adoption and ratification of the agent's acts, is equal to previous authority. Fisher v. Willard, 13 Mass. 379.

Where a power of attorney signed by the defendant was given to 15 persons by name, “jointly or separately, to sign and underwrite all such policies of assurance as they or any of them should jointly or separately think proper :" Held, that this was to be construed as a joint and several authority; and that

the plaintiff might maintain an action on a policy underwritten by four of the persons therein named. Guthrie v. Armstrong, 1 D. & R. 248; 5 B. & A. 628. Semble, that, under a power of attorney by A to B "to underwrite any policy of insurance not exceeding £100, and to subscribe to the same his (A's) name, and to settle and adjust losses,” &c., although B cannot delegate his whole authority to another, yet, having signed a slip for the policy of insurance, the signature of his clerk for him, and in his absence, to a policy made in pursuance thereof, is a good execution of the power, that being only a ministerial act, which he might authorise another to do for him, but he must himself execute the power in all matters in which his judgment and discretion are requisite. In the present case, the policy, after it was so executed by the clerk of B, having been shown to A, who then offered terms of settlement, it was held that A adopted the act of B. Mason v. Joseph, 1 Smith, 406. And where the agent of a corporation was appointed only by parol and received the premium in another state where his agency was, held, that the corporation was bound to indemnify the insured although the premium had not been received from the agent before the loss; and that it did not lie with the company arbitrarily to say they would not recognize the rate of premium, or would not be satisfied with the risk; and they were accordingly decreed to indemnify the assured. Perkins v. Washington Ins. Co., 4 Cow. 645. In this case, no policy had been executed.

Interest.-Upon an issue, whether the plaintiff was interested in goods destroyed by fire, if a witness called by the plaintiff states that invoices of the goods, and letters of advice, purporting to be written by him at Edinburgh, were fabricated in London after the fire, by the plaintiff's direction, it is competent to the plaintiff to call other witnesses to disprove the alleged fabrication, and show the genuineness of the documents. Friedlander v. London Ass. Co., 1 Nev. & M. 31.

Where the question was, whether a bankrupt had an interest in the goods insured at the time of the loss? It was held that the effect to be given to the stoppage of goods in transitu, was, to rescind the contract, and to revest the property in the original owners, so that the bankrupt after the stoppage in transitu, had no property in the goods insured; and therefore, his assignee could not support an action on the policy. Clay v. Harrison, 10 B. & C. 93.

A bill of lading, signed by the master, and indorsed to a bona fide holder by the consignee is a transfer of all interest in the goods to the indorsee: "it conveys the property upon a bona fide indorsement, in the same manner as a direct delivery would do, if so intended." Lord Ellenborough in Newson v Thornton, 6 East, 40. Though the assignment be made after the arrival of the goods in port. Chandler v. Belden, 18 John. 157. But a mere indorsement of a bill of lading, without a delivery of it, does not transfer the goods. Buffington v. Curtis, 15 Mass. 522. By a delivery of the goods to the master, of which the bill of lading is the evidence, the property vests in the consignee, subject only to be divested by the consignor, by the exercise of his right of stoppage in transitu, in case of the insolvency of the consignee, Ludlow v. Bowne, 1 John. 15, 16; Potter v, Lansing, ib. 215. The bill of lading is not conclusive

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