ship, in which case an averment of interest is not necessary (37). The declaration then proceeds to state, that the property insured was lost, and by what means it was lost, so as to bring the case within some or one of the perils specified in the policy, and thereby intended to be insured against; as by the barratry of the master or mariners, &c.

If the plaintiff should allege in the declaration, that there was a total loss, and lay his damages accordingly, evidence of a partial loss will maintain the declaration, and plaintiff may recover the amount of his real loss.

The two insurance companies, namely, the Royal Exchange and the London Assurance, having been in conse

c 2 Burr. 904. 1 Bl. R. 198.

(37) Whether, in such case, it may be necessary that any alle gation as to the property of the ship should be made on the part of the plaintiff, or whether it be not incumbent on the defendant to shew that the property is not insurable within the statute 19 G. 2. c. 37. s. 1. is a question which has not been solemnly decided. In several cases, where actions have been brought on foreign ships, averments as to the property have been inserted in the declaration. In Craufurd v. Hunter, 8 T. R. 15. it was averred, that the ships insured were not belonging to his Majesty, or any of his subjects, before or at the time of making the policy, or at the time of the loss. In Nantes v. Thompson, 2 East, 385. the averment was, " that the ship was not at the time of effecting the policy, nor of the happening of the loss, nor at any other time, the property of the king, or any of his subjects." In neither of these cases was any objection made to the form of the averments; but in Kellner v. Le Mesurier, 4 East, 396. (where an insurance was made in England. on the ship Princess Louisa, lost or not lost," at and from Lisbon to Cadiz, &c.") the averment being that the ship was not at the time of making the policy, nor of the happening of the loss, the property of the king, or any of his subjects, there was a special demurrer, assigning for cause, that the declaration did not contain any averment of interest, and that it did not appear that the ship, at the time of her departing from Lisbon, or at the beginning of the adventure insured, was not the property of the king, or any of his subjects. It was contended, on the part of the plaintiff, that supposing the allegation in question to be insufficient, yet it might be rejected as surplusage, for it was not necessary to make any alle gation at all on the subject, and that the onus lay on the defendant to shew, that the property was not insurable in virtue of the provisions introduced by the statute 19 G. 2. c. 37. s. 1. The court being of opinion in favour of the defendant, on another ground of objection, declined the consideration of the question as to the

averment.

quence of the stat. 6 G. 1. c. 18. incorporated by several charters granted, and having a common seal affixed to all their contracts, the proceeding against these companies must be by action of debt or covenant.

If there has been a double insurance (38), then it will be proper to consider against which of the underwriters (as the best man, or in the best circumstances) the action shall be brought.

Of the Pleadings.

The action of assumpsit being that form of action which is most usually brought upon policies of assurance, the defendant may of course plead any plea which the law permits to be pleaded to that action; but as the grounds of defence, which are most usually insisted on by the insurers, go to the disaffirmance of the contract, and consequently may be given in evidence under the general issue, non assumpsit, it rarely happens that any other plea is pleaded. This plea puts in issue every material allegation in the declaration.

The actions of debt and covenant (which are the only forms of action which can be adopted in cases where the two insurance companies are defendants) not admitting by the rules of the common law of any plea like non-assumpsit, which will put in issue the whole declaration, (for non est factum only puts in issue the due execution of the deed declared on,) it has been expressly provided by stat. 11 G. 1. c. 30. s. 43." that in all actions of debt against either of the said corporations, or upon any policies of insurance

(38) Double insurance is, where there are two insurances made by the same person on the same risk, whereby the assured proposes to receive the same sum twice for the same loss, or, in other words, a double satisfaction. The policy of the law, however, will permit the recovery of a single satisfaction only. But although the insured is not entitled to two satisfactions, yet in an action upon the first policy, he may recover the whole sum insured*. Whether in such case the first insurers may recover a rateable satisfaction from the other insurers seems to be a vexata quæstiot. See further on the subject of double insurance, Godin v. London Assurance, 1 Burr, 489. 1 Bl. R. 103.

Newby v. Read, 1 Bl. R. 416.

+Aff. Newby v. Read, ubi sup. Rogers v. Davis, Beawes, 242. Davis v. Gildart, all decided at N. P. by Ld. Mansfield. Neg. African Comp. v. Bull, Show. 132.

under their common seal, it shall be lawful for them to plead generally, that they owed nothing to the plaintiff in such action; and in actions of covenant upon such policies to plead generally, that they have not broke the covenants in such policy contained, or any of them. And if issue be joined thereupon, it shall be lawful for the jury, if they see cause, to find a verdict for the plaintiff, and to give such part only of the sum demanded, if in debt, or so much damages, if in covenant, as it shall appear to them, upon the evidence, such plaintiff ought in justice to have."

Consolidation Rule.

In actions upon a policy of assurance against several underwriters, the court, by consent of the plaintiff, will make a rule, on the application of the defendants, which is called the consolidation rule, for staying the proceedings in all the actions except one, upon the defendant's undertaking to be bound by the verdict in that action, and to pay the amount of their several subscriptions and costs, in case a verdict shall be given therein for the plaintiff. This rule, though attempted before without success, was introduced by Lord Mansfield into general use, to avoid the expense and delay arising from the trial of a multiplicity of actions upon the same question; and if the plaintiff will not give his consent, the court have the power of granting imparlances in all the actions but one, till the plaintiff has an opportunity of proceeding to trial in that action. On the other hand, if the plaintiff consent to the rule, the court will make the defendants submit to reasonable terms, such as admitting the policy, producing and giving copies of books and papers, and undertaking not to file a bill in equity, or bring a writ of

error.

The plaintiff having brought actions against the defendant, and several other underwriters, upon a policy of insurance, a consolidation rule was obtained, by which it was ordered that the several parties should be bound by the verdict to be given in a cause of Aylwin v. Wylie. That cause having been tried, and a verdict found for the plaintiff, the defendant brought a writ of error; but, having omitted to put in bail in error, within due time, the plaintiff took out execution. The defendant in the present action then brought a writ of error, and put in bail, notwithstanding

d Tidd's Prac. p. 532, 3. ed. 2d. 557. e Aylwin v. Favine, 2 N. R. 430.

ed. 3d.

which the plaintiff moved for leave to sue out execution against him. The court refused the application, Sir J. Mansfield observing, that the form of the consolidation rule decided this motion, which was, that the proceedings in the several causes should be stayed, and that the parties should be bound by the verdict to be given in the cause of Aylwin v. Wylie, if that should be to the satisfaction of the judge and the court. How then could the court say, that this rule deprived the defendants, in any of the actions, from bringing writs of error? It was admitted that, in the action tried, the defendant was entitled to bring a writ of error. Then why should the other defendants be precluded? It was contended, however, that as the defendant in the action tried had been prevented, by a blunder, from rendering his writ of error effectual, that blunder should affect the other defendants. But there was nothing in the rule to authorize that position; the order related solely to the verdict.

IX. Of the several Grounds of Defence on which the Insurer may insist:

1. Illegal Voyage or illegal Commerce.

2. Misrepresentation.

3. Breach of Warranty,

1. Illegal Voyage, or illegal Commerce.

ONE ground of defence is, that the voyage insured was prohibited by law, or that the goods insured were intended for carrying on an illegal commerce. In neither of these

cases can an action be supported against the underwriter for non-performance of the contract of insurance.

The circumstance of the underwriter having been apprized of the illegality of the voyage or trade is wholly immaterial, but, in order to render the insurance illegal, it is necessary that the illegality should exist during the course of the voyage insured. Hence a policy on goods purchased with the proceeds of an illegal cargo is binding; and in like manner the assured may recover on a policy, although the ship in a prior voyage had been guilty of some transgression for which she was liable to be seized.

Trading with an enemy, without the king's licence, being illegal, the law will not enforce a contract of insurance made for the protection of such trade. But it is legal to trade with the subjects of an enemy's country by the king's licence'. If it be provided in such licence, that the party acting under it shall give bond for the due exportation to the places proposed of the goods intended to be exported to such country, and they are exported without such bond having been given, such exportation is illegal, and the owners cannot recover on a policy to protect the goods. If a licence to export and deliver goods to an enemy's country be granted for a limited time, it is not sufficient, that the goods were shipped before the expiration of the time, the ship not sailing until after that time.

Trading to the East Indies, in contravention of the stat. 9 & 10 W. 3. c. 44. (whereby a monopoly is vested in the East India Company), is illegal, and consequently policies on ships engaged in such trading are void.

Whenever the crown, for purposes of state policy and, public advantage, licenses a description of trading with an enemy's country, which would otherwise be unquestionably illegal, such commerce must be regarded by all the subjects of the realm and by the courts of law as legal, with all the consequences of its being legal; one of which consequences is a right to contract with other subjects of the country for the protection of such property in the course of its conveyance to its licensed place of destination though an enemy's country, and for the purpose of being there delivered to an alien enemy as consignee or purchaser'.

f Bird v. Appleton, s T. R. 562. S. C.

h Potts v. Bell, 8 T. R. 548.

i Vandyck v. Whitmore, 1 East, 475.

k Camden v. Auderson, 6 T. R. 723. Affirmed on error in Exch. Chr. 1 Bos, & Pul. 272.

Usparicha v. Noble, 13 East, 322,