Gale v. B. R. Eaft. Long v. Allen Term. be done, in the other: and as the parties had not divided the risk themselves, the court could not do it for them. In another cafe upon an infurance" at and "from any port or ports in Jamaica, to London, « following and commencing on her firft arri"val there, warranted to fail with convoy from "the place of rendezvous to Great-Britain," the fame queftions were again agitated. But as the counsel differed upon the evidence given at the trial, the main question was not fully difcuffed by the court, but was fent back to a new trial. The last cafe upon this fubject was also an action for a return of the premium. The policy was "at and from Jamaica to London, warranted to depart with convoy for the voyage, and to fail on or before the 1st of Auguft, upon goods on board a fhip called the Jamaica, at a premium of 12 guineas per cent." The fhip failed from Jamaica to London on the 31st of July 1782, but without any convoy for the voyage. At the trial before Lord Mansfield, the jury found a verdict for the plaintiff, fubject to the opinion of the court upon a cafe, ftating the facts already mentioned. In addition to which, they expressly find, "that it is the conftant and invariable ufage in an "infurance, at and from Jamaica to London, war"ranted to depart with convoy, or to fail on or "before the ft of Auguft, when the fhip does "not depart with convoy, or fails after the ift "of August, to return the premium, deducting << one half per cent." Lord Mansfield.-An infurance being on goods warranted to depart with convoy, the fhip fails without convoy; and an action is brought to recover the premium. The law is clear, that if the risk be commenced, there fhall be no return. Hence questions arife of diftinct risks insured by one policy or inftrument. My opinion has been to divide the risks. I am aware that there are great difficulties in the way of apportionments, and and therefore the court has fometimes leaned against them. But where an exprefs ufage is Vide Meyer v. Gregion. found by the jury, the difficulty is cured. They offered to prove the fame ufage as to the West Indies in general; but I ftopt them, and confined the evidence to Jamaica. Mr. Justice Willes and Mr. Juftice Afbburst, concurred with his Lordship. Mr. Juftice Buller.-The counfel for the defendant did right in his argument to make the chief question, Whether parole evidence of this ufage ought to have been received. In mercantile cafes from Lord Holt's time, and in policies of infurance in particular, a great latitude of conftruction as to ufage has been admitted. By usage, places come within the policy, which are not expreffed in words; ufage explains and even controuls the policy. The ufage here found by the jury is univerfal: and though in fome cafes one half per cent. may be a finall premium for the rifk at; yet the underwriters are aware that it is fo. In Meyer v. Greg fon, no ufage was found. Befides in cafes of this kind, where every thing is left to the whim and caprice of a jury I lean much against them. Here a general and certain usage is found; and no inconvenience can refult from it. The poftea was delivered to the plaintiff. From the tenor of all these cafes it fhould feem, as my Lord Mansfield faid in the cafe of Long v. Allen, that fo many difficulties occur in apportioning the premium, that the courts are often obliged to decide against it, unless there be fome ufage upon the fubject. Even in the cafe of Stevenfon v. Snow, the jury found that it had been ufual to divide the rifk; and although the court rejected the ufage for uncertainty, because it did not ascertain what proportion of the premium fhould be returned; yet they exprefsly fay, that it ferves to fhew what the idea of the mercantile world is upon the fubject. If, indeed, we look back to all the cafes reported in this chapter, we Vide ante c. 18. never find an apportionment take place, except in Stevenson v. Snow, and Long v. Allen, on account of the difficulty, unless there be fome usage, as in those cafes, to guide and direct the judgement of the court. Before this chapter is concluded, it will be proper to obferve, that in the cafe of Bond v. Nutt, which was fo often mentioned in the argument of the cafes upon apportionment, the queftion never arofe. In that cafe, the two material questions were, as may be feen by a reference to it in the two preceding chapters of this work, whether the fhip had complied with a warranty of failing by a particular day: and whether in going to the place of rendezvous for convoy, she was guilty of a wilful deviation. It was proper to mention this, to prevent mifconftruction; and it was alfo taken notice of by Mr. Justice Buller, in the cafe of Long v. Allen. CHAPTER THE TWENTIETH. Of the Proceedings upon Policies of Infu IN rance. 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 fuftained a lofs, is to recover against the Vide the In- underwriters upon the policy. We have formertroduction. ly feen, that the Court of Policies of Infurance fell into disuse, and the reasons why it did fo: fince which period, all queftions of this nature have been decided by the ufual mode of trial, known to the laws and conftitution of this country, namely, the trial by jury in the courts of common law. Cafes Cafes of this nature are not the fubject of enquiry 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. V. the Governor and Affurance. In the year 1720, fome merchants at Oftend fet De Ghetoff up a trade to the Eaft Indies; and amongst others, and Others one James Maelcamp equipped a fhip called the Flandria, for a voyage to China, wherein feveral Company of perfons were concerned. Maelcamp had the care the London and direction of the ship, and gave receipts to 3 Brown's the feveral perfons concerned, for the monies Parliament they paid, promifing to be accountable to them Cafes 525. for their refpective proportions of the net profit of the voyage. These transactions being carried on moftly at Oftend or Antwerp, the feveral perfons, 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 concerned therein: he alfo, by the order and direction of the appellants, and for their use 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 121. per cent. The fhip failed from Oftend, in order to proceed to China; but on her way, was feized at Bencoolen, in the East Indies, by the governor, being an English fettlement, and the fhip and cargo were confifcated. The appellants, upon notice of this event, applied to the Gg refpon refpondents for payment of the 5000 l. infured, and produced to them the feveral receipts for their refpective 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 refpondents, and the faid Conninck, praying, that the respondents might be decreed to pay the appellants the faid fum of 500l. with intereft, according to their feveral and refpective fhares and proportions thereof. To this bill, the refpondents put in a demurrer and anfwer, and to fuch part of the bill, as fought to compel them to pay the appellants the 500l. or to make them any fatisfaction for any lofs, which had happened to the fhip, they demurred; and for caufe of demurrer fhewed, that if the policy of infurance 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 interest 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 anfwer fhould come in; and if the appellants did not procure fuch anfwer in two months, the demurrer was to be allowed. Conninck accordingly put in his anfwer within two months, and thereby admitted, that he made the affurance in his own name, in truft and for the benefit of the appellants; but faid, he did not care to permit the appellants to bring any action against the refpondents in his name; he being advifed, that if any fuch action fhould be brought, and they should not prevail therein, he would be perfonally liable to pay all the coits and charges occafioned in con fequence |