he may bring trover, or detinue, for the very policy itself and it is urged from hence, that he either will, or may, have a double fatisfaction for the fame lofs.

But allowing that, by the indorfement of the bills of lading and affigning the cargo to Tamefz, he ftands in the place of Meybohm in refpect of his infurances; yet Mr. Amyand has an interest of his own, and had actually infured the ship and goods, to the amount of 1900l. (upon both together) prior to any directions or intimation received from Mr. Meybohm, to infure for him. Various people may infure various interefts on the fame bottom (as one perfon for goods; another for bottomry, &c.) And here, Mr. Amyand had an intereft of his own, diftinct from that of Mr. Meybohm: he had a lien upon thefe very goods as a factor to whom a balance was due. And he had the fole interest in the ship; which was a part of the things infured by him. It is far from appearing, that even his laft infurance (in October) was made on the account of Meybohm, or as agent for him. So far from it, Mr. Amyand infifts upon it for his own benefit, (as he exprefsly declared at the trial) and abfolutely refuses to give it up, or to fuffer his name to be used by the plaintiff; though he was a witnefs for the defendants, and was produced by them, and inclined to ferve them. So that the foundation of this argument, urged by the defendant's counfel, fails them; and there is, in reality, nothing to fupport it. But even fuppofing that Mr. Amyand had made his infurance, not upon his own account, but as agent or factor for Mr. Meybohm, and upon the account of Meybohm; yet even then Tamefz can never come against Amyand's underwriters, or come at Amyand's policy, to his own ufe. For Amyand, the factor of Meybobm, has poffeffion of the policy, and appears to have been a creditor of Meybohm upon the balance of accounts between them, at

Y 4

the

the time when he made the infurance: and I take it to be now a fettled point, "that a factor, "to whom a balance is due, has a lien upon all "goods of his principal, fo long as they remain "in his poffeffion." Kruzer and others v. Wilçox and others, was a cafe in Chancery upon this point. It came on firft before Sir John Strange, then Mafter of the Rolls, who decreed an account, and directed allowances to be made for what the factor had expended on account of the hip or cargo, and referved all further directions till after the mafter's report. It came on again, afterwards, for further directions, after the mafter's report, before the Lord Chancellor, who was attended by four eminent merchants, whom he interrogated publickly. After which he took time to confider of it; and on the firft of February 175, decreed, "that the factor has a lien "on goods configned to him; not only for inci"dent charges, but as an item of mutual account "for the general balance due to him fo long as he

retains the poffeffion. But if he part with the "poffeffion of the goods, he parts with his lien; because it cannot then be retained as an item. "for the general account." There was another cafe, in the fame court, of Gardiner v. Coleman, a few months after, in which the former case, determined as I have mentioned, was confidered as a point fettled; and this latter cafe of Gardiner v. Coleman was decreed agreeably to it. So that Mr. Amyand, even confidered as factor or agent to Meybohm, and as making the infurance upon Meybohm's account, is yet entitled to retain the policy; Meybahm being indebted to him upon the balance of the account between them; and he has a lien upon the policy, whilft it continues in his poffeffion. Therefore, even in this view of the cafe, Mr. Tamez muft first have paid to Amyand the balance of his (Amyand's) account, before he could have gotten that policy out of nyand's hands; and confequently, Mr. Tamez

was

was very far from being entitled to the benefit of it as a cefiuy qui truft, abfolutely and entirely.

But if the question, "whether Tamefz could take benefit of Mr. Amyand's policy," were doubtful; yet here, Tamefz infured the goods with the defendants, exprefsly under the declaration of his fufpicion, that there might have been a former confignation, and fome former infurance made upon the goods by fome other perfon; bus he defired to infure the whole for his own fecurity; and to this the defendants agreed, and took the whole premium. Mr. Amy and infifted upon his right to the whole benefit of his own policy, when he was examined as a witnefs; and is now litigating it in Chancery. It would neither be juft nor reafonable, that Tamefz fhould only recover half of his lofs from the defendants, and be turned round for the other half, to the uncertain event of a long and expenfive litigation. I do not believe there ever will or can be a recovery by Tamefz, or those who shall stand in his place, against Amyand's underwriters. . However, if thofe underwriters are liable to contribute at all, the contribution ought to be among the feveral infurers themselves: but Tamefz, the infured, has a right to recover his whole lofs from the defendants, upon the policy now in question, by which they are bound to pay the whole. For though here be two infurances, yet it is not a double infurance: to call it fo is only confounding terms, If Tamefz could recover against both fets of infurers, yet he certainly could not recover against the underwriters of Amyand's policy, without fome expence; nor without alfo firit paying and re-imburfing to Mr. Amyand the premium he paid, and also his charges. This is by no means within the idea of a double infurance. Two perfons may infure two different interefts; each to the whole value; as the mafter, for wages; the owner, for freight, &c. But a double infurance is where the fame man is to receive two fums instead of

one,

P. 77.
Ord. of Fran.
and Stockh.

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. Mr. Tanefz is entitled to receive the whole from the defendants, upon their policy; whatever fhall become of Mr. Amyand's policy: and they will have a right in cafe he can claim any thing under Mr. Amyand's policy, to ftand in his place, for a contribution to be paid by the other underwriters to them. But ftill they are certainly obliged to pay the whole to him. Therefore upon thefe grounds and principles, in every light in which the cafe can be put, we are all of us clearly of opinion, that the verdict is right, as it now ftands for the whole; and that the poftea must be delivered to the plaintiff.

In the courfe of what has been faid upon double infurance, no notice has been taken of the laws of foreign ftates refpecting that point: the reafon of this filence is the great contrariety to be found in their laws upon the fubject; it being almoft impoffible to mention two countries, whofe Ord. of Mid- regulations, as to this matter, are fimilar. In dleb. 2 Mag, one the contract is abfolutely void, and a forfeiture enfues in others, if the first policy amount to the value of the effects laden, the other infurers fhall withdraw their infurance, retaining one half per cent. and in fome other countries, the double infurance is merely void, without any forfeiture being incurred. When there is fuch a diverfity in the ordinances upon the fubject, it feemed needless to enter into them, efpecially as the law of England with respect to double insurance is fo clear, and fo well founded in reafon and natural justice, as to require no illuftration or confirmation from the laws of any other country.

2 Mag. 172, 267.

Ord. of Bilboa, 2 Mag.

P. 411.

Having, in this and the five preceding chapters, treated of thofe circumftances, by which the contract of infurance is rendered void from it's commencement, on account of fome radical defect, which prevents the policy from ever having

C

any operation at all: and having, in the course of
that enquiry, been led into a variety of difcuffion,
involving in it a very material part of the law of in-
furance: we fhall proceed to fhew in what cafes the
policy, although not void ab initio, is rendered of
no effect, because the infured has not himself fully
complied with thofe conditions, which he has
either exprefsly, or tacitly, from the nature of his
contract, undertaken to perform. It was indeed.
obferved in the first chapter of this work, that al- Vide ante,
though the policy is not fubfcribed by the in- P. 1.
fured, yet there are certain conditions to be per-
formed on his part, with as much good faith and
integrity as if his name appeared at the foot of
the policy; otherwife it is a dead letter, and he
can never recover an indemnity for any lofs,
which he may happen to sustain.

CHAPTER THE SIXTEENTH.

O

Of Changing the Ship.

F thofe caufes, which will operate as a bar to the infured's recovering upon a policy of insurance, against the underwriter, the first to be mentioned is that of changing the fhip; or, as it has commonly been called, changing the bottom. This will require but very little difcuffion. We formerly faid, that except in some spe- Vide ante, cial cafes of infurances upon fhip or fhips, it was c. 1. effentially requifite to render a policy of infurance effectual, that the name of the ship, on which the rifk was to be run, thould be inferted. That being done, it follows as an implied condition that the infured fhall neither fubftitute another ship

for