XV. CHA P. furer die, it is no lefs neceffary and beneficial to his fucceffors, that there fhould be a re-affurance, than it was in the former cafe of a bankruptcy: because it will provide affets to fatisfy the infured in cafe a lofs fhould happen, and thus fecure the eftate of the deceafed for the benefit of his heirs. Indeed, in both cafes, the intention of the legislature feems to have been, to provide a fund for the payment of that proportion, which, in cafe of an infolvency, the infured will have a right to demand, in common with the other creditors; and for the payment of the whole, without prejudice to the heir, even in cafes where the ancestor, at the time of his death, was in folvent circumftances. This act is worded in such exprefs terms, excluding every fpecics of re-affurance, except in the three inftances of death, bankruptcy, or infolvency, that a doubt, as it fhould feem, Vide ante, c. 14. could hardly be founded upon it. But as it was held, that the first claufe of the ftatute, prohibiting infurances, intereft or na intereft, did not extend to foreign fhips; fo it was argued, that re-affurances made here on the ships of foreigners did not fall within the act. It might have occurred, however, that the first claufe of the ftatute is qualified, and only prohibits fuch infurances when made on his majesty's fhips, or the foips belonging to his majesty's fubjects: whereas the clause in queftion is general and without restriction; the inference from which is, that the legislature had both objects in view, and meant wholly to prohibit the one, but not the other. Andree v. Fletcher. This point came on to be confidered by the Court of King's Bench, in the year 1787, in the form of a special cafe, stating, Term. Rep that a re-afïurance was made by the defendant on a French vefjel, first infured by a French underwriter at Marfelles, who was living, and who, at the time of fubfcribing the fecond policy, was folvent. The court (Aurfi, Buller, and Grofe, juftices) were unanimously of opinion, that this policy of re-affurance was void; and that every re-affurance in this country, either by British subjects or foreigners, on British or foreign ships, is void by the ftatute; unless the first affurer be infolvent, become a bankrupt, or die. There XV. There is another fpecies of re-affurance allowed by the CHA P. laws of France, as eftablifhed by an ordinance of Lewis the Fourteenth, which was alfo taken from that ancient and ex- Le Guidon, c. cellent French treatise, that has been fo frequently mention- 2. art. 20. tit.Affur.art.2c. cd. By this regulation, it is declared lawful for the affured Ord. of Lew. 14. to infure the folvency of the underwriter. By thefe means, the perfon infured gets rid of thofe fears, which he may have conceived concerning the ability of the infurers to pay, and he gains a fecond fecurity to answer for the fufficiency of the firft. But it is not to France alone that this kind of contract 2 Mag. 190. is reftrained; for by the pofitive laws of many other mari-419. time States, fuch re-affurances are valid and binding contracts. The English ftatute, which has been the tubject of this and the preceding chapter, takes no exprefs notice of this fort of infurance; because, in truth, I believe it never was very much in practice in England: but, however," it feems clear that fuch a circumftançe as the folvency of the underwriter, is not an infurable intereft; that a policy opened upon fuch an event would be treated as a wager policy; and would confequently fall within the statute of George the Second, which declares all policies made by way of gaming or wagering, to be abfolutely null and void to all intents and purposes. Having faid thus much of re-affurances, I fhall proceed to Double Infurconfider the nature of a double infurance, and to ftate the auce. few cafes that have been determined upon the fubje. I treat of it in this place, because these two kinds of infurance have been fometimes confounded together, and fuppofed to mean the fame thing: whereas no two ideas can be more distinct. We have already feen what is meant by a re-affur ance, A double infurance is where the fame man is to 1 Burr. 496. receive two fums instead 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 fhip. The first diftinction between the two contracts, is, that a re-assurance is a contract made by the firit underwriter, his executors or affigns; to fecure himfelf, or his eftate: a double insurance is entered into by the infured. A re-affurance, except in the 19 Geo. IL. cafes provided for by the ftatute, is abfolutely void: a double c. 37. f. 4. infurance is not void; but still the infured fhall recover only one fatisfaction for his lofs. This requires explanation. 1 Black. Rep. Where a man has made a double infurance, he, may recover 416. his XV. CII A P. his lofs, against which of the underwriters he pleases, but he can recover for no more than the amount of his lofs. This deBurr. 492 pends upon the nature of an infurance, and the great principles of justice and good faith. An infurance is merely a contract of indemnity, in cafe of lofs; it follows as a neceffary confequence that a man shall not recover more than he has loft, or recover fatisfaction greater than the injury he has fuftained. This rule was wifely eftablished, in order to prevent fraud, left the defire of gain fhould occafion unfair and wilful lofies. It being thus fettled, that the infured fhall recover but one satisfaction, and that in case of a double insurance, he may fix upon which of the underwriters he will for the payment of his lefs, it is a principle of natural juftice that the feveral infurers fhould all of them contribute in their feveral proportions, to fatisfy that lofs, against which they have all infured. ! Thefe principles have been fully declared to be law in seve eral cafes, which are now to be mentioned, In the year 1763, it was ruled by Lord Mansfield, Chief Juftice, and agreed to be the courfe of practice, that upon a double infurance, though the infured is not entitled to two fatisfactions; yet, upon the first action he may recover the whole fum infured, and may leave the defendant therein to recover a rateable fatisfaction from the other infurers. Rogers v. Da Thus alfo it was determined in a fubfequent cafe at vis, Sittings in Guildhall. It was an action on a policy of infurance on a Geo. III. before fhip from Newfoundland to Dominica, and from thence to Mich. Vac. 17 Lord Manf field the port of difcharge in the Weft Indies. It was a valued policy on the fhip and freight; and on the goods as intereft fhould appear. The fhip failed from St. John's the 17th of December 1775, and the plaintiff declared as for a total Jofs. The defendant underwrote for 2007. and has paid into court 124 This fum was paid on a supposition, that the underwriters on a former policy fhould bear a share of the lofs. The plaintiff had originally infured at Liverpool on a voyage from Newfoundland to Barbadoes and the Leeward Iflands, with an exception of American captures: but the plaintiff afterwards, for the purpose of fecuring himself against captures, and having altered the course of his voyage, made the prefent infurance. The plaintiff now infifted he was XV. was entitled to receive the full amount of his infurance C H A P against the defendant, and not to any part from the Liverpool underwriters, because the voyage now infured was different from that infured at Liverpool. There was however a verdict for the plaintiff for his full demand, with liberty for the defendant to bring an action against the Liverpool underwriters, if he thought fit. L Eaft. Vac. 17 Accordingly in the Eafter term following, an action was Davis v. Gilde brought for money had and received to the ufe of the plain- art, Sittings in tiff, who was the defendant in the last cause, in order to re- Geo. III. at cover a contribution for the lofs which the plaintiff had been Guildhall obliged to pay. It was agreed by both parties to admit, that on the London policy (which was the subject of the former action) 2200l. were insured; that on the two Liverpool policies 1700l. were jnfured: that the merchant was interefted to the amount of 500l, on the fhip; 300l, on the freight; and 1400 on the cargo. That the plaintiff had paid 200/. lofs, and 471. for the cofts. The question was, whether the defendant was liable to contribute any thing, and what, The whole intereft was 220c/ and the whole infurance was 3900l. It was infifted by the counfel for the defendant, that the infurance in London was an illegal reaffurance; and therefore the plaintiff might have made a good defence in an action brought against him; and if fo, he could not now recover over against the defendant. Lord Mansfield." The queftion feems to be whether the infured has not two fecurities for the lofs that has happen ed. If fo, can there be a doubt that he may bring his action against either? It is like the cafe of two fecurities; where, if all the money be recovered against one of them, he may recover a proportion from the other. Then this would bring it to the question, whether the fecond infur ance is void as a re-affurance. But a re-affurance is a contract made by the infurer to secure himself; and this is only a double infurance." There was another ground taken in the caufe, which is not material to be mentioned here; but upon this direction the plaintiff had a verdict. Although a man, by making a double insurance, fhall not be allowed to recover a double fatisfaction for the fame lofs; yet various perfons may insure various interests on the fame 1 Burr, 496. thing, and each to the whole value (as the mafter' for wages; the XV. CHAP. the owner for freight; one perfon for goods, another for bottomry) and fuch a contract does not fall within the idea of a double infurance. There is a full cafe upon this fub ject, and a very claborate argument of Lord Mansfield, in delivering the judgment of the whole Court of King's Bench, in which most of the questions relative to double infurances are clearly and decifively fettled. In this caufe the question London Allur. was, whether the plaintiff ought to recover his whole lofs, Comp. 1 Burr, or only a half; it being objected that there was a double 489. 1 Black. infurance. A verdict was found for the whole, fubject Rep. 103. Godin and others v. The to the opinion of the court upon Lord Mansfield's report. Lord Mansfield, in delivering the opinion of the court, be gan, by stating the facts, as they appeared to him at the trial. Mr. Meybohm of St. Petersburg had dealings with Mr. Amyand and Company of London, who often fent fhips from London to Mr. Meybohm at St. Petersburg. Meybohm, as ap peared by the evidence, was indebted, on the balance of their accounts, to Amyand and Company, Amyand and Company fent a fhip, called The Galloway, Stephen Barker, master, to Mr. Meybohm, at St. Petersburg, to fetch certain goods. Meybohm fent the goods, and promised to fend the bill of la ding by the next poft, but never did. Afterwards, in Auguß, 1756, Amand and Company got a policy of infurance from private underwriters, for 1100l. on the fhip, tackle, and goods, at and from London to St. Petersburg, and at and from thence back again to London which policy was figned by several private underwriters, quite different perfons from the prefent defendants; and of this fum of 1100l. thus underwritten, 505, was declared to be on : parts of the ship, Between the 26th and the remaining 600l. to be on goods. evidence |