XV. CHA P. his own name, but one or both of them in the name of another person, yet that is just the same thing; for the fame perfon is to have the benefit of both policies. And if the whole should be recovered from one, he ought to ftand in the place of the infured, to receive contribution from the other, who was equally liable to pay the whole. But in this cafe if Tamez was not to have the benefit of both policies in all events, then it can never be confidered as a double policy. It has been faid, that the indorsement of the bills of lading transferred Meybohm's intereft in all policies, by which the cargo affigned was infured; and therefore Tamefz has a right to Mr. Amyand's policy; and that Tamefz, being the affignee of [286] Meybohm, is the ceftuy qui trust of it, and may recover the money infured; and even that he may bring trover, or detinue, for the very policy itfelf: and it is urged from hence, that he either will, or may, have a double fatisfaction for the fame lofs. But allowing that by the indorsement of the bills of lading and affigning the cargo to Tamefz, he ftands in the place of Meybohm in respect of his infurances; yet Mr. Amyand has an intereft of his own, and had actually infured the ship and goods, to the amount of 19c0l. (upon both together) prior to any directions or intimation received from Mr. Meybohm, to infure for him. Various people may infure various interefts on the fame bottom: (as one perfon for goods, another for bottomry, &c.) And here, Mr. Amyand had an intereft of his own, diftinct from that of Mr. Meybohm: he had a lien upon these very goods as a factor to whom a balance was due. And he had the fole interest in the fhip; which was a part of the things infured by him. It is far from appearing, that even his last insurance (in October) was made on the account of Meybohm, or as agent for him. So far from it, Mr. Amyand infifts upon it for his own benefit (as he expressly declared at the trial), and absolutely refuses to give it up, or to fuffer his name to be used by the plaintiff, though he was a witnefs for the defendants, and was produced by them, and inclined to ferve them. So that the foundation of this argument, urged by the defendant's counsel, fails them; and there is, in reality, nothing to fupport it. But XV. [287] even fuppofing that Mr. Amyand had made his infurance, not C H A P. upon his own account, but as agent or fattor for Mr. Meybohm, and upon the account of Meybohm; yet even then Tamefz can never come against Amyand's underwriters, or come at Amyand's policy to his own ufe. For Amyand, the factor of Meybahm, has poffeffion of the policy, and appears to have been a creditor of Meybohm upon the balance of accounts between them, at the time when he made the infurance and I take it to be now a fettled point," that a factor to whom a balance is due, has a ❝lien upon all goods of his principal, f long as they remain in "his poffeffion." Kruger and others v. Wilcox and others, Ambler's Rep was a cafe in Chancery upon this point. It came on first 252. before Sir John Strange, then Mafter of the Rolls, who decreed an account, and directed allowances to be made for what the factor had expended on account of the fhip or cargo, and referved all further directions till after the master's report. It came on again, afterwards, for further directions, after the mafter's report, before the Lord Chancellor, who was attended by four eminent merchants, whom he interrogated publickly. After which he took time to confider of it; and on the first of February 1755, decreed, " that the factor has a lien on goods "configned to him; not only for incident charges, but as an "item of mutual account for the general balance due to him fo "long as he retains the poffeffion. But if he part with the pof"feffion of the goods, he parts with his lien, because it cannot "then be retained as an item for the general account." There was another cafe, in the fame court, of Gardiner v. Coleman, a few months after; in which the former cafe, determined as I have mentioned, was confidered as a point fettled; and this latter cafe of Gardiner v. Coleman was decreed agreeably to it. So that Mr. Amyand, even confidered as factor or agent to Meybohm, and as making the infurance upon Meybohm's account, is yet entitled to retain the policy; Meybohm being indebted to him upon the balance of the account between them; and he has a lien upon the policy, whilft it continues in his poffeffion. Therefore, even in this view of the cafe, Mr. Tamefz must first have paid to Amyand the balance of his (Amyand's) account, before he could have gotten that policy out of Amyand's hands; and confequently, Mr. Tamefz was very far from being entitled to the benefit of it as a ceftuy qui truft, abfolutely and entirely. PD But XV. CHA P. But if the question, "whether Tamefz could take the benefit of Mr. Amyand's policy," were doubtful; yet here, Tamefz infured the goods with the defendants, exprefsly under the declaration of his fufpicion, that there might have been a former confignation, and fome former infurance made upon the goods by fome other perfon: but he defired to infure the whole for his own fecurity; and to this the defendants agreed, and took the whole premium. Mr. Amyand infifted upon his right to the whole benefit of his own policy, when he was examined as a witnefs; and is now litigating it in Chancery. It would neither be just nor reasonable, that Tamefz fhould only recover half of his lofs from the defendants, and be turned round for the other half, to the uncertain event of a long and expensive litigation. I do not believe there ever will or can be a recovery 288] by Tamefz, or thofe who fhall ftand in his place, against Amyand's underwriters. However, if thofe underwriters are liable to contribute at all, the contribution ought to be among the feveral infurers themfelves: but Tamefz, the infured, has a right to recover his whole lofs from the defendants, upon the policy now in queflion, by which they are bound to pay the whole. For though here be two infurances, yet it is not a double infurance; to call it fo is only confounding terms. If Tamefz could recover against both sets of insurers, yet he cer tainly could not recover against the underwriters of Amyand's policy, without fome expence; nor without alfo firft paying and reimburfing to Mr. Amyand the premium he paid, and alfo his charges. This is by no means within the idea of a double insurance. Two perfons may infure two different interests; each to the whole value; as the mafter, for wages; the owner, for freight, &c. But a double infurance is where the fame man is to receive two fums inftead of one, or the fame fum twice over, for the fame lofs, by reafon of his having made two infurances upon the fame goods, or the fame thip. Mr. Tamefz is entitled to receive the whole from the defendants, upon their policy; whatever fhall become of Mr. Amyand's policy and they will have a right in cafe he can claim any thing under Mr. Amyand's policy, to ftand in his place, for a contribution to be paid by the other underwriters to them. But ftill they are certainly obliged to pay the whole to him. Therefore upon thefe grounds and principles, in every light in which XV. which the cafe can be put, we are all of us clearly of opinion, CHA P. that the verdict is right, as it now ftands for the whole; and that the poftea must be delivered to the plaintiff. Ord. of Middieb. 2 Mag. p. 77. Ord. of Fran. and Stockh. 2 Mag. 172. In the course of what has been faid upon double infurance; no notice has been taken of the laws of foreign ftates refpecting that point: the reafon of this filence is the great contrariety to be found in their laws upon the fübject; it being almost impoffible to mention two countries, whofe regulations, as to this matter, are fimilar. In one the contract is abfolutely void, and a forfeiture enfues: in others, if the first policy amount to the value of the effects laden, the other infurers fhall withdraw their infurance, retaining one half per cent. and in fome other countries, the double infurance is merely void, without any forfeiture being incurred. When there is fuch a diverfity in the ordinances upon the fübject, it feemed needlefs to enter into [289] them, especially as the law of England with respect to double infurance is fo clear, and fo well founded in reafon and natural juftice, as to require no illuftration or confirmation from the laws of any other country. 267. Ord, of Bilboa, 2 Mag. p. 4117 Having, in this and the five preceding chapters, treated of thofe circumftances, by which the contract of infurance is rendered void from its commencement, on account of fome radical defect, which prevents the policy from ever having any operation at all and having, in the courfe of that enquiry, been led into a variety of difcuffion, involving in it a very ma. terial part of the law of infurance: we fhall proceed to fhew in what cafes the policy, although not void ab initio, is rendered of no effect, because the infured has not himself fully complied with those conditions, which he has either exprefsly or tacitly, from the nature of his contract, undertaken to perform. It was Vide ante, p. 1. indeed obferved in the firft chapter of this work, that although the policy is not fubfcribed by the infured, yet there are certain conditions to be performed on his part, with as much good faith and integrity as if his name appeared at the foot of the policy otherwife it is a dead letter, and he can never recover an indemnity for any lofs, which he may happen to fuflain. 290 CHA P. CHAPTER THE SIXTEENTH. Of Changing the Ship. F those causes, which will operate as a bar to the infured's recovering upon a policy of infurance, against the underwriter, the first to be mentioned is that of changing the ship; or, as it has commonly been called, changing the bottom. Vide ante, c. 1. This will require but very little difcuffion. We formerly faid, that except in fome fpecial cafes of infurances upon fhip or fhips, it was effentially requifite to render a policy of infurance effectual, that the name of the ship, on which the risk was to be run, fhould be inferted. That being done, it follows as an implied condition that the infured fhould neither fubflitute another ship for that mentioned in the policy before the voyage commences, in which cafe there would be no contract at all; nor during the course of the voyage remove the property infured to another fhip, without the confent of the underwriter, or without being impelled by a case of unavoidable neceffity. If he do, the implied condition is broken, and he cannot recover a fatisfaction, in cafe of a lofs, from the infurer; because the policy was upon goods, on board a particular ship, or upon the ship itself; and it becomes a material confideration in a contract of insurance, upon what vessel the risk is to be run; fince the one may be much ftronger, and more able to refift the perils of the fea; or by its swift failing, much better able to escape from the pursuit of an enemy, than the other. Mal. Lex 66 Malyne, it is true, in his Lex Mercatoria, appears to be of a different opinion; for he fays, "It fometimes happens, that upon fome special confideration, this claufe forbidding the transferring of goods from one fhip to another is inferted in policies of affurance; because in time of hoftility or war "between princes, it might be unladen, in fuch fhips of those " contending princes, by which the adventure would be en"creafed. But according to the ufual insurances which are "made generally without an exception, the affurer is liable "there 5 |