Equity for relief, as for instance for an injunction to stop an action at law. (a) There are two well known instances in which a Court of Equity will or will not interfere; which are these at the Common Law it is a maxim that a policy of assurance cannot be altered after it has been signed, (at least not without the consent of the parties) and a Court of Equity will not alter a policy in the absence of strong proof of its being contrary to the intent and agreement of the parties. • This was held in the case of Henkle v. Royal Exchange Assurance Company. (b) But where a policy has been drawn up by mistake, in terms which are not conformable to the real intention of the parties, the instrument may be rectified in a Court of Equity by the slip or label, so decided in the case of Motteux v. The Governor and Company of London Assurance. (c) There is another ground for an application to a Court of Equity, where there is a suspicion of fraud on the part of the assured: in such cases, the Court of Equity will compel the party to make a full disclosure upon oath of all the circumstances that are within his knowledge. (d) But except in these instances, all issues upon policies of insurance must be tried in the Courts of Common Law. Even if the parties, by a clause in the policy, agree that in case of a dispute, it shall be referred to arbitration, that will not be a sufficient bar to an action at law, provided no reference has been in fact made, nor is depending. Thus in Kill v. Hollister (e) in an action upon a policy of insurance it appeared, that a clause was inserted, that in case of any loss or dispute about the policy, it should 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 consideration of the Court, whether this action would lie before a reference had been (a) See Lewen v. Swasso, ante, p. 342. (b) 1 Ves. 317. (d) 2 Atkyns, 359. (e) 1 Wils. 129. And in Thomp son v. Charnock, 8 T. R. 139, it was held that a covenant in a deed to refer all matters is not sufficient to oust the courts of law and equity of their jurisdiction. 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. action. II. Having thus seen in what Courts the party injured in Of the form of the contract of insurance is to seek for redress, let us now consider, by what form of action that redress is to be obtained. by action of debt or covenant. I. The act of Parliament, by which the two insurance 1. The remedy against the Companies were erected (a), ordered, that they should have a incorporated common seal, by affixing which, all corporate bodies ratify companies is and confirm their contracts (6). Hence a policy of insurance made by the Royal Exchange Assurance Company, or the London Assurance Company, is a contract under seal; and if the contract is broken, the proceedings against these Companies must be by action of debt or covenant (c). From this circumstance a great inconvenience arose; for under the plea of the general issue to an action of debt or covenant, the true merits of the case could seldom come in question: but in order to bring them forward, it became necessary to plead specially. This was attended with such a heavy expense, such great delays, and frequent applications to Courts of Equity for relief, that the Legislature at last interposed, and enacted, "that in all actions of debt to be sued or commenced against either of the said corporations, upon any policy of insurance under the common seal of such corporations, for the assuring of any ship or ships, goods or merchandises, at sea or going to sea, it should and might 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 (a) Ante, p. 530. (b) 6 Geo. 1, c. 18. (c) By the 39 Geo. 3, c. 83, the Globe Insurance Company was incorporated, and by the 9th sect. the same pleas and the same power to the jury to assess the damages, are EEE They may plead the general issue and give the special matter in evidence. 2. The remedy against a private underwriter is by action of assumpsit. 3. Consolidation Rule.-Its nature, and suit or action; and that in all actions of covenant, which should be sued or commenced against either of the said corporations upon any such policy of assurance under the common seal of such corporation for the assuring of any ship or ships, goods or merchandises, at sea or going to sea, 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 suit or action, 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." (a) 2. Wherever the contract of insurance is entered into with a private underwriter, it is done by the insurer merely subscribing his name to the instrument, which is no more than what is called a simple contract; the remedy for a breach of which is by an action of assumpsit, or an action upon the case founded upon the promise and undertaking of the insurer. 3. When a number of actions are brought upon the same policy, it is a constant practice (b) to consolidate them by a rule of Court, or by a Judge's order, which restrains the usually made. plaintiff from proceeding to trial in more actions than one, the terms on which it is and binds the defendants, in all the others, to abide the fate of that one; but this is done on the condition that the defendant shall not file any bill in equity, or bring any writ of error for delay. The Court will likewise, upon a proper ground being made by the plaintiff, impose any other terms on the defendants which under all circumstances appear reasonable as that they shall produce at the trial all books, (a) 11 Geo. 1, c. 30, s. 43. And by Reg. Gen., Trin. Term, 1 Vict. the words "by statute" must now be inserted in the margin of the plea. (b) See ante, p. 681, in the case of Thelluson v. Staples. papers, &c., in their custody, material to the point in issue: that the defendant, in the action to be tried, shall admit his subscription to the policy, the interest of the assured, the loss, or any other fact upon which the question intended to be tried does not turn, or which is not meant to be seriously disputed. But the Court will not impose any terms on the defendant, out of the ordinary course, without his consent, which, however, a defendant who only means to litigate fairly will not refuse, when it is only to save the trouble and expense of proving facts which are not disputed. And, on the other hand, the Court will impose any reasonable counter terms on the plaintiff which the defendant may have to propose (a). The rule is not binding on the plaintiff as well defendant. as the Where the plaintiff has Court will not It was formerly thought that a consolidation rule bound the plaintiff as well as the defendant, and that the Court or Judge could not, though fresh evidence had been discovered, permit the plaintiff to try the other actions. But the contrary has now been decided in the case of Doyle v. Douglas (b), in which a consolidation rule had been entered into, whereby ten of the defendants agreed to be bound by the verdict in the first action, Doyle v. Dallas, to make certain admis- failed in the sions, and bring no writ of error, and file no bill in equity for delay; and the proceedings were to be delayed in the last ten actions till after the trial of the first. The defendant had the verdict, and judgment was signed, and execution issued for the costs. No levy was made, as the plaintiff's goods mere moved out of the way. The case of Doyle v. Douglas being set down for trial, a rule was obtained to show cause why the proceedings in Doyle v. Douglas should not be stayed till the plaintiff should have paid the costs in Doyle v. Dallas, and why the defendant should not be allowed to issue execution. Per Curiam.-"To grant this rule, would be stretching the authority of the Court farther than we are entitled to (a) See Marsh. vol. 2, ch. 16, s. 4. (b) 4 B. & Ad. 544. The de fendant had been ruled by a Judge's first action, the restrain him from trying a second cause included in the rule, till the costs of the first are paid. And the Court will not compel the plaintiff, without his consent, to several actions carry it. By the practice contended for, the plaintiff, as well as the defendant, would be bound by the consolidation rule. The defendant may issue execution, but the cost of the rule must be discharged" (a). And in the case of Doyle v. Anderson: Doyle v. Stewart (b), where a plaintiff brings several actions upon the same policy of insurance against several underwriters, the submit to have Court will not, without the consent of the plaintiff, make a consolidation rule upon the terms of both plaintiff and depolicy against fendant, being bound in all the actions by the event of one. The Court saying, "that they could not force a party to accept a benefit, for which he does not ask, and impose conditions on him for so doing." on the same different underwriters decided by the event of one. In a later case of Hollingsworth v. Broderick, &c. (c), however, than the preceding, where two actions had been brought by the same plaintiff on the same policy of insur ance against different defendants, the Court ordered them to be consolidated, after a declaration had been delivered in one, and an appearance entered in the other, at the instance of the defendant, in the latter action, though the plaintiff objected. But in the case of Ohrly v. Dunbar (d), where sixty-five actions were brought by one party on policies of insurance against individual underwriters and incorporated companies, for sums amounting in the whole to 27,000l., the defendants obtained a consolidation rule, which bound the plaintiff as well as the defendants. One cause was tried, the plaintiff had a verdict, and a rule was granted for a new trial on (a) In Long v. Douglas, Mich. T. 1831, where the plaintiff failing in the first cause, gave notice of trial in another, the costs of the first remaining unpaid. A rule was obtained for staying the proceedings. The Court discharged the rule. Lord Tenterden, observing, however, that where the plaintiff proceeded in a second consolidated action without applying to the Court, he was not entitled to have the benefit of any terms imposed on the defendants by the rule. (b) 1 A. & E. 635. (c) 4 A. & E. 646, and see the rule which was drawn up by consent in that case. (d) 5 A. & E. 824. |