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3. (Contract by.) When an infant makes a contract with an adult to serve for a year, and quits before he has performed the whole service, he is entitled to recover what his services are reasonably worth, taking into consideration the injury to the other party; and if, under all the circumstances, his services are worth nothing, he cannot recover. Thomas v. Dike, 11 Vermont, 273. 4. (Suit by.) An infant may sue by prochein ami in Vermont, notwithstanding he has a guardian, if the guardian does not dissent. Ib. INJUNCTION. (Dissolution of) In common cases, it is of course to dissolve an injunction, if the answer denies the whole merits; and the plaintiff will not be permitted upon a motion to dissolve the injunction, to read affidavits in contradiction to the answer. It is otherwise in cases of special injunctions. Poor v. Carleton, 3 Sumner, 70. 2. (Same.) The continuance or dissolution of a special injunction, after the coming in of the answer, depends upon the sound discretion of the court. Ib. 3. (Dissolution of special.) The answer must positively deny the material facts of the bill, and the denial must be grounded on personal knowledge, not merely on information and belief, in order to support an application to dissolve a special injunction. Ib. 4. (Same.) In cases of irreparable mischief, the dissolution of an injunction rests in the sound discretion of the court, whether applied for before or after answer. Affidavits may, after answer, be read by the plaintiff to support the injunction, as well as by the defendant to repel it; and this, although the answer contradicts the substantial facts of the bill, and the affidavits of the plaintiff are in contradiction of the answer. Semble, the practice on this subject is more liberal in America, than in England. Ib. INSURANCE. (Prior policy.) Two days before the expiration of a policy, fully insuring a vessel on time, the defendants made a policy insuring the same vessel, at and from Boston to Charleston, the second policy providing, that if the assured should have made prior insurance upon the vessel, then the defendants should be chargeable only for so much as the amount of such prior insurance should be deficient towards fully covering the property at risk, whether for the whole voyage, or from one port of loading or discharge to another. The vessel sailed from Boston before the expiration of the first policy, but was lost after it had expired. It was held, that the second policy attached, notwithstanding the first policy continued in full force till after the vessel had sailed from Boston, and that the defendants were consequently liable for the loss. Kent v. Manufacturers' Ins. Co., 18 Pickering, 19. 2. (Effected for owners.) By a policy of insurance on a vessel, the defendants “caused C. & L., for the owners, payable to C. &. L., to be insured.” It was held, that an action might be maintained on such policy in the names of such owners, with the consent of C. & L., it not appearing that the defendants had any claim against. C. & L. Farrow v. Commonwealth Ins. Co., 18 Pickering, 53. 3. (Survey and sale.) A vessel insured at Boston, struck on Carysford reef, while on a voyage to Mobile, and was injured to the amount of more than half her value, but was got off and arrived in safety at Mobile. While she was lying at a wharf in that port, a survey was held upon her, and the surveyors having recommended a sale, she was sold by the master, who was also a part owner and one of the insured, without consulting the insurers or the agent of the owners at Boston. It was held, that the master as such, was not justified under these circumstances, in selling the vessel. Peirce v. Ocean Ins. Co., 18 Pickering, 83. 4. (Same.) In the same case it appeared, that when the facts became known in Boston, the agent before mentioned, to whom, by the policy, the loss was made payable, called on the insurers with the protest and the other usual documents to prove a loss, and a statement setting forth a claim for a salvage loss on the vessel incurred in consequence of her getting on the reef on her voyage to Mobile, at which place she was surveyed, condemned and sold for the good of all concerned, the insurers being charged therein with the value of the vessel and credited with the proceeds of the sale, and demanded payment of a total loss; and that an action was subsequently brought by such agent against the insurers, claiming as for a total loss, the declaration averring the interest to be in the master and the other part owners jointly. It was held, that under such declaration no distinction could be made between the rights of the other part owners and those of the master, who could not set up his own unauthorized act as the foundation for a claim for a total loss, and who was also incapacitated from making an effectual abandonment, by the sale, which passed his interest in the vessel as a part owner; that (semble) the other part owners, by joining in the claim against the defendants, in which they set forth the sale and credit the usurers with the proceeds, ratified the sale, and so disqualified themselves to abandon; that there was not in fact an abandonment, there being no relinquishment of the vessel or of any interest therein; that if it could be considered that an abandonment was made by implication, it was made on the ground that the vessel had been condemned and sold, which did not warrant the owners in abandoning, and they could not avail themselves of the ground that the vessel was injured, by striking on the reef, to the amount of more than half her value; and consequently, that there was not such an abandonment, as wonld relate back to the time when the loss occurred, so as to constitute the master the agent of the insurers, thereby throwing on them the responsibility for such unauthorized sale, and thus render them liable as for a total loss. Ib.
5. (Double.) In the case of a double insurance, by two insurers, the party insured may elect to consider each insurer as liable to bear a proportionate share of a loss, and recover accordingly; or to require either of them to pay the whole ; in which latter case, the one who pays the whole or a disproportionate part of the loss, would have a remedy against the other for a contribution. Wiggin v. Suffolk Ins. Co., 18 Pickering, 145.
6. (Same.) Where in such case the party insured commenced an WOL. XXV.-NO. XLIX. 11
action on both policies at the same time, and one of the insurers paid into court one half of the actual loss, (first making certain deductions, by way of set-off) and the insured took the money out of court, it was held, that this was primá facie evidence, that he had made his election to consider each insurer responsible for one half of the sum actually at risk. Ib. 7. (Same.) A vessel was insured by the defendants, by a policy providing that any “loss shall be paid in sixty days after proof and adjustment thereof, the amount of the premium note, if unpaid, and all sums due to the insurers from the insured, when the loss becomes due, being first deducted; and all sums coming due being first paid or secured to the satisfaction of the insurers, they discounting interest for anticipating payment.” At the same time, the insured gave the defendants a bottomry bond on the vessel, with sureties. Subsequently a policy on another vessel was underwritten by the defendants for the same person, containing the like provision respecting sums due and coming due to the insurers, and a provision prohibiting the insured from assigning the policy without the insurers' previous consent. This second policy was assigned to the plaintiff, with their consent, they “reserving to themselves all the rights expressed in the policy regarding premium notes, debts, &c.” The first policy was not assigned. In an action by the assignee of the second policy for a loss, it was held, that the insurers must deduct from a loss on the first policy, all premium notes due from the insured, whether given before or after the assignment of the second policy, and must deduct the balance of such loss from the sum due on the bottomry bond; and that they had a right to set off the balance remaining due on the bond after such deduction, against the plaintiff's claim without first resorting to the vessel bottomried or to the sureties on the bond.” lb. 8. (Assignment of policy.) Where an underwriter assented to an assignment of the policy, “reserving his rights expressed in the policy,” and by the terms of the policy any loss was to “be paid in sixty days after proof and adjustment thereof, the amount of the premium note, if unpaid, and all sums due to the
underwriter from the insured when such loss becomes due, being first deducted,” it was held, in an action by the assignee to recover a loss, that the underwriter was entitled to deduct the amount of premium notes given by the assignor for policies underwritten subsequently in the ordinary course of business, and without any fraudulent intent to defeat the assignment. Wiggin v. American Ins. Co. 18 Pickering, 158. 9. (Same.) In the same action it was held, that the underwriter, having a claim against the assured on the bottomry bond, had a right to deduct the amount of his claim from the loss on the policy, and was not obliged to resort to the surety on the bond, though solvent, in relief of the assignee of the policy. 1b. 10. (Concealment of material fact.) The plaintiff obtained insurance against fire on his one-story framed store, occupied by him, without disclosing the fact that it stood on the land of another person under a verbal agreement terminable, at the pleasure of such person, upon six months' notice, neither was any inquiry made by the insurers in regard to his title. It was held, that there was not a concealment of a material fact, and that the policy therefore was not void. Fletcher v. Commonwealth Ins. Co. 18 Pickering, 419. 11. (Mutual—beyond the value.) Where property was insured by a mutual insurance company to an amount founded on a representation made to them in regard to its value by the assured, and with the knowledge, or the means of knowledge, of the situation and actual value of the property, and the assured paid a premium and assumed liabilities as a member of the company, proportioned to the amount insured, it was held, that in the absence of fraud, the company was liable for the whole of such amount, although it exceeded the value of the interest of the assured. Borden v. Hingham Mutual Fire Ins. Co. 18 Pickering, 523. 12. (General average.) The wages, provisions, and other expenses of the voyage, to a port of necessity, for the purpose of making repairs, constitute a general average. Potter v. Ocean Ins. Co., 3 Sumner, 27.