393 СНАР. duction. CHAPTER THE TWENTIETH. IN Of the Proceedings upon Policies of Insurance. N the prefent chapter, it is intended to point out in what manner, and by what form of legal proceeding, a man, who has infured property, and has sustained a lofs, is to reVide the Intro- cover against the underwriters upon the policy. We have formerly feen, that the Court of Policies of Infurance fell into difufe, and the reasons why it did fo: fince which period all questions of this nature have been decided by the usual mode of trial, known to the laws and conftitution of this country, namely, the trial by jury in the courts of common law. Cafes of this nature are not the fubject of inquiry even in a Court of Equity, because the demand is plainly a demand at law; and the lofs and damage fuftained are as much the object of proof by witneffes, as any other species of damage whatever. This was decided by a decree of Lord Chancellor King, whofe opinion was afterwards confirmed by the Houfe of Lords. De Ghetoff and others v. the Governor and the London Affurance. 525. In the year 1720, fome merchants at Oftend set up a trade to the East Indies; and amongst others, one James Maelcamp Company of equipped a fhip, called the Flandria, for a voyage to China, wherein several perfons were concerned. Maelcamp had the 3 Brown's Par- care and direction of the fhip, and gave receipts to the fev liament Cafes, eral perfons concerned, for the monies they paid, promifing to be accountable to them for their respective proportions of the net profit of the voyage. Thefe tranfactions being car ried on moftly at Oftend or Antwerp, the several persons who had a mind to be concerned in the undertaking, gave directions to their correfpondents at thofe places, to pay Maelcamp what fums they thought fit, and to take his receipts for the fame. The appellants gave directions to one Conninck to pay feveral large fums to Maelcamp, on account of the faid undertaking; and accordingly Conninck paid him divers fums, amounting to 35,000 guilders, and took diftinct receipts for the fame, according to the proportion for which the appellants were XX. were concerned therein: he alfo, by the order and direction of CHA P. the appellants, and for their ufe or benefit, agreed with the refpondents to infure on the faid fhip the Flandria 5000l. and by a policy, dated the 26th day of December 1720, this infurance was effected, at a premium of 12l. per cent. The fhip failed from Oftend, in order to proceed to China; but on her way was feized at Bencoolen, in the Eaft Indies, by the gover nor, being an English settlement, and the ship and cargo were confifcated: The appellants, upon notice of this event, applied to the refpondents for payment of the 5000/ insured, and produced to them the several receipts for their respective interefts in the fhip, and affidavits affirming the feveral fums therein mentioned, to have been really and bona fide paid. But the refpondents refufing to pay, or make any fatisfaction to the appellants, they brought their bill in the Court of Chancery against the respondents, and the said Conninck, praying, that the refpondents might be decreed to pay the appellants the faid fum of 5000l. with intereft, according to their feveral and respective fhares and proportions thereof. To this bill, the refpondents put in a demurrer and answer, and to fuch part of the bill, as fought to compel them to pay the appellants the 5000l. or to make them any satisfaction for any lofs, which had happened to the ship, they demurred; and for cause of demurrer fhewed, that if the policy of insurance in the bill mentioned was forfeited, a proper action at law lay to recover the money due thereupon; and that the appellants, if they were entitled to fuch relief as they prayed by their bill, might have their complete and adequate remedy by an action at law, where fuch matters were properly cognizable, and where the appellants ought to prove their intereft in, and the lofs of the fhip. The demurrer came on to be argued before Lord Chancellor King, when his lordship ordered it to ftand over for two months till Conninck's answer fhould come in; and if the appellants did not procure fuch answer in two months, the demurrer was to be allowed. Conninck accordingly put in his anfwer with in two months, and thereby admitted, that he made the af furance in his own name, in trust and for the benefit of the appellants; but faid, he did not care to permit the appellants to bring any action against the respondents in his name; he being advised, that if any fuch action should be brought, and they fhould fhould not prevail therein, he would be perfonally liable to pay all the cofts and charges occafioned in confequence thereof. In fupport of the demurrer it was urged, that the appellants' demand was plainly a demand at law, as they had nothing to prove but their intereft, and the lofs of the fhip, which were facts proper to be tried by a jury. That there was no equity fuggefted by the bill, but a pretended difficulty to produce witnefles: and that their trustee refused to permit them to bring an action in his name: that the former objection might with equal reafon be fuggefted in almost ev ery cafe of a policy of infurance; and the latter appeared manifeftly to be thrown into the bill merely to change the juriídiction, and it was in a great meafure falfified by the trustee's anfwer, for he did not fay that he ever refufed, but only that he did not care to permit his name to be made ufe of. If bills of this kind were encouraged, it would be easy to bring all forts of property to be tried in a Court of Equity. Upon these reafons, Lord King allowed the demurrer; and upon an appeal to the House of Lords, after hearing counfel upon it, it was ordered and adjudged, that the fame should be dismissed; and the order complained of, affirmed. There may, it is true, be cafes, where an application to a Court of Equity on the part of the infured, is ftrictly proper, and will be entertained. For inftance, if the trustee in a policy of infurance do actually refufe his name to the ceffui que truft in an action at law, there may be fome pretence for going into a Court of Equity, as Lord Hardwicke has once obferved. Or, if from a concurrence of circumftances, the persons, whose teftimony is requifite to the decision of some difputed facts, refide abroad, the Court of Chancery will grant a commiffion to examine those witneffes. But it is not upon a mere general truft, or the loofe fuggeftions of any of these facts, that this extraordinary interpofition will take place. There are alfo cafes in which the infurers may go into equity to obtain injunctions to stay the proceedings against them at law: as in the last cafe mentioned, where the evidence of perfons abroad is requifite for their defence; in XX. which fituation, they fhall have a commiffion to examine CHA P.. witneffes abroad, and an injunction to stay proceedings at law in the mean time. Another ground for an application to a Court of Equity, is a fufpicion of fraud on the part of the infured, and of which I fear the chapter on fraud produces too many inftances: in such cases the court will com- Vide e. ka pel the party charged to make a full disclosure upon oath of all the circumftances that are within his knowledge; and to deliver up all papers and documents that are at all material to the question. But except in thefe inftances, all iffues upon policies of infurance, must be tried in the courts of common law. Even if the parties, by a claufe in the policy, agree that in cafe of a difpute, it fhall be referred to arbitration, that will not be a fufficient bar to an action at law; provided no reference has been in fact made, nor is depending. Thus in an action upon a policy of insurance it appeared, Kill v. Hollifthat a claufe was inferted, that in a cafe of any loss or difpute ter. 1 Will.129. about the policy, it fhould be referred to arbitration: and the plaintiff averred in his declaration, that there had been no reference. Upon the trial at Guildhall, the point was reserved for the confideration of the court, whether this action would lie before a reference had been made; and it was held by the whole court, that if there had been a reference depending, or made and determined, it might have been a bar; but the agreement of the parties cannot oust this court; and as no reference has been, nor any is depending, the action is well brought, and the plaintiff must have judgment. Having thus feen in what courts the party injured in the contract of infurance is to feek for redrefs, let us how confider, by what form of action that redress is to be obtained. 6 Geo. I. e. 18. The act of parliament, by which the two Infurance Companies were erected, ordered, that they thould have a common feal, by affixing which, all corporate bodies ratify and confirm their contracts. Hence a policy of insurance made by the Royal Exchange Affurce Company, or the London Af furance Company, is a contract under feal; and if the contract is broken, the proceedings against these Companies, must be by action of debt or covenant. From this circum ftance a great inconvenience arofé, for under the plea of the general iffue to an action of debt or covenant, the true merits 397 1.43. XX. CHAP. of the cafe could feldom come in question: but in order to bring them forward, it became neceffary to plead fpecially. This was attended with fuch a heavy expenfe, fuch great delays, and frequent applications to Courts of Equity for relief, that the legislature at laft interpofed, and enacted, "that 11 Geo, L. e. 30. " in all actions of debt, to be fued or commenced against either "of the faid corporations, upon any policies of infurante un"der the common feal of fuch corporations, for the affuring "of any ship or ships, goods or merchandizes, at sea, or going "to fea, it should and might be lawful to and for the faid cor"porations, in fuch action or fuit, to plead generally that they "owed nothing to the plaintiff or plaintiffs in such suit or ac❝tion; and that in all actions of covenant, which should be fued or commenced against either of the faid corporations upon fuch policy of affurance under the common feal of such "corporation for the affuring of any ship or fhips, goods or "merchandizes, at fea or going to fea, it fhould and might be "lawful for the faid refpective corporations, in such action or "fuit, to plead generally, that they had not broke the covenants "in fuch policy contained, or any of them; and if thereupon "iffue fhould be joined, it should and might be lawful for the "jury, if they fhould fee cause, upon the trial of such issue, "to find a verdict for the plaintiff or plaintiffs in fuch fuit or "action, and to give fo much, or fuch part only of the fum "demanded, if it be an action of debt, or fo much in damaif it be an action of covenant, as it should appear to ges, "them, upon the evidence given upon fuch trial, fuch plain"tiff or plaintiffs ought in justice to have." 36Geo.IIL, c.26. any In a fubfequent act of parliament the following claufe is inferted, "that if any action or fuit fhall be commenced, "brought, or prosecuted against the corporation of the Royal "Exchange affurance of houfes and goods from fire, by any "person or perfons, bodies politic or corporate, for or con"cerning any affurance or affurances by the faid recited "charter, or hereby authorized to be made, or relating to "the powers hereby granted, or concerning any other mat"ter or thing herein or in the faid charter above recited "contained, the said corporation and their fucceffors may in "fuch action or fuit plead the general iffue, and give the "special matter in evidence." 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