AUDLEY 1. DUFF. [114] LORD ELDON, Ch. J.: After all the consideration which I have been able to bestow upon this subject, I remain of the same opinion which I entertained at the trial, and therefore think that the case was properly decided by the jury. The case is neither more nor less than this. From the disposition of the enemy's force it happened that we had many merchant ships collected in the various ports of Portugal. Lord St. Vincent as commander upon that station, was to provide a convoy for them in such a manner as he should think best. With respect to many of those ships, it could hardly be ascertained, at the time when the policies were underwritten, in what ports they were; though indeed it was understood that the Ceres was at Oporto. The uncertainty therefore under which the parties laboured, respecting the manner in which the convoy would be formed, and the place from which it would depart, created the necessity of employing the expressions which have been introduced into this policy. The assured agreed that on the ship being insured from the port in which she then was to Lynn, the underwriter should have 12 guineas per cent.; but that in case the voyage was undertaken with convoy, there should be a return of 6l. per cent. It being unknown from what port on the coast of Portugal the convoy would sail, the clause for the return of premium was to be adapted to the circumstances of the case. The departure with convoy might be from Oporto, or it might be from some other place; it became necessary therefore to introduce some expression which extended to something more than a mere departure from Oporto. Had the insurance been from Portugal, the introduction of the words, "from the coast of Portugal," might have furnished an argument in the plaintiff's favour. But the insurance being from Oporto which is a port on the coast of Portugal, it may be inferred that the assured intended to claim a return of premium, not only if the ship departed from Oporto with convoy, but if she departed with convoy from any port on the coast of Portugal, not excluding Oporto. With respect to the liberty given by the policy to touch and stay at any ports on the coast of Portugal, I think it quite clear that when the ship departed from Oporto with convoy, that liberty was at an end. It must be understood that such liberty was given to the Ceres when not under convoy; for then only would she be in a situation to exercise it. Having in this case departed from Oporto with convoy, the policy must be considered as if the above mentioned liberty had never been conceded. The only fair interpretation of the agreement is, that the *assured should have the benefit of the policy, though she sailed from Oporto without convoy, but that if the Ceres sailed from Oporto, which is on the coast of Portugal, with convoy, then there should be a return of premium. HEATH, J. : This question is new in specie because it has arisen on a transaction which never happened before. It had been usual for ships to go from Oporto to Lisbon to meet with convoy. But in the present instance it was thought proper, on account of the number of privateers, to send the Speedy cutter and King'sfisher to collect the trade. There are however established principles on which this case must be decided. It has always been understood that provisions for a departure with convoy have relation to the custom of trade and the orders of Government, and ought therefore to receive a liberal construction. There are many instances in Park's Insurance where ships having been warranted to depart with convoy from the port of London, but the convoy having been appointed to sail from the Downs, or from Spithead, reference has been had to the orders of Government, and the warranties have been held to be fulfilled by joining convoy at those places. It was contended that we should in effect strike out some of the words of the policy if we decided in favour of the plaintiff: but that argument, if just, would apply to those cases to which I have alluded where ships have been warranted to depart with convoy from the port of London. The question is, what was to be the terminus a quo? as to which I think the cases cited are directly in point. I am clearly of opinion that the event has happened on which the contract for a return of premium was to attach, and if any doubt could be entertained upon the words, they must be construed † Vid. Lethulier's case, 2 Salk. 443; and Gordon v. Morley, 2 Str. 1265; and Park, Insur. 344. AUDLEY v. DUFF. [ *116] most favourably for the assured. The underwriters engaged to return the premium, and verba fortius accipiuntur contra proferentem. ROOKE, J.: Since this rule was first moved for I have entertained some doubts upon the subject, but am now satisfied that the verdict is right. The premium was given on a war risk: the Ceres therefore was at liberty either to touch and stay at any of the ports of Portugal, with a view to obtain convoy, or to sail direct for England without convoy; but if she obtained convoy then a part of the premium was to be returned. Now in this case there was a convoy appointed by relays to protect the trade to England; and the Captain of the Ceres having sailed with that convoy with a bona fide intention to proceed for England, the proviso for a return of premium has been complied with. Had the ship been warranted to depart with convoy, she would have been under the necessity of leaving Oporto with the Speedy cutter and the King'sfisher; and her so doing would have amounted to a fulfilment of the warranty. It is true that the policy is made by the broker of the assured; but the undertaking to return the premium is the undertaking of the underwriters, and must therefore be construed most strongly against them. Rule discharged. 1800. Feb. 12. [120] W. MAINWARING, G. B. MAINWARING, AND (2 Bos. & P. 120-125.) A. makes a promissory note in favour of A., B., and C. The note is indorsed by them to C., E., and F., who, as holders, bring an action upon the note against B. as an indorser. The action will not lie; nor can it be made good by any amendment in respect of parties.† THE declaration in this case stated "that one James Brander, on &c. at &c. made his certain note in writing commonly called a promissory note, his own proper handwriting being thereunto subscribed bearing date the same day and year afore† See Bills of Exchange Act, 1882, s. 61. said and then and there delivered the said note so subscribed to the said William Newman and one James Brander and one Thomas Chatteris carrying on trade together in partnership under the name style and firm of Newman Brander & Chatteris by which said note the said James Brander two months after date promised to pay to the order of the said William Newman James Brander and Thomas Chatteris by the names and description of Messrs. Newman Brander & Chatteris 2,800l. value in account. And the said William Newman James Brander and Thomas Chatteris to whose order the payment of the said sum of money in the said note contained was thereby appointed to be made afterwards and before the payment of the said sum of money in the said note contained or any part thereof and before the time thereby appointed for such payment to wit on &c. at &c. indorsed the said note, the hand-writing of one of them on their joint and partnership account and in their joint and partnership name style and firm of Newman Brander & Chatteris, being thereunto subscribed and by that indorsement appointed the contents of the said note to be paid to the said William Mainwaring George Boulton Mainwaring and Thomas Chatteris, and then and there delivered the said note so indorsed to the said William Mainwaring George Boulton Mainwaring and Thomas Chatteris of which said indorsement so made upon the said note as aforesaid the said James Brander afterwards to wit on &c. at &c. had notice. And the said William Mainwaring George Boulton Mainwaring and Thomas Chatteris aver that afterwards and when the said note became due and payable (to wit) on &c. at &c. they the said William Mainwaring George Boulton Mainwaring and Thomas Chatteris shewed and presented the said note so indorsed as aforesaid to the said James Brander for his payment of the said sum of money therein contained and then and there required him to pay the same. But the said James Brander did not then or at any time whatsoever pay the said sum of money in the said note mentioned or any part thereof but then and there wholly refused so to do of all which premises the said William Newman James Brander and Thomas Chatteris afterwards to wit on &c. at &c. had notice. By reason. of all which premises and by force of the statute in that case MAIN WARING v. NEWMAN. [ *121 ] made and provided the said William Newman became liable to pay the said William Mainwaring George Boulton Mainwaring and Thomas Chatteris the said sum of money in the said note mentioned and being so liable the said William Newman in consideration thereof afterwards to wit on &c. at &c. undertook and to the said William Mainwaring George Boulton Mainwaring and Thomas Chatteris then and there faithfully promised to pay to them the said sum of money in the said note mentioned when he the said William Newman should be thereunto after wards requested." There were also counts in indebitatus assumpsit for money had and received, money paid, and money lent, and on an account stated, in each of which William Newman was stated to be indebted to William Mainwaring, George Boulton Mainwaring, and Thomas Chatteris, and in consideration thereof, to have promised to pay to them 7,000l. These counts were followed by the common breach that William Newman had not paid to the said William Mainwaring, George Boulton Mainwaring, and Thomas Chatteris, or either of them, &c. Pleas. 1st, Non assumpsit. 2dly, "That the said Thomas Chatteris, one of the said payees and indorsers of the said promissory note in the first count of the said declaration mentioned, is one and the same person with the said Thomas Chatteris one of the said plaintiffs, and not other or different, and that the said several promises and undertakings in the said declaration mentioned were, and each of them was, made by the said William Newman together with the said Thomas Chatteris, jointly, and not by him the said William Newman separately from and without the said Thomas Chatteris, to wit, &c. And this, &c. Wherefore," &c. To this second plea there was a special demurrer assigning for causes "that the said William Newman hath not in or by that plea traversed or denied the making by him the said William Newman of the said promises or undertakings in the said declaration mentioned, nor hath he thereby confessed and sufficiently avoided the same. And also for that the said William Newman hath thereby attempted to plead in bar of the actions of the said William Mainwaring, George Boulton Mainwaring, and Thomas Chatteris, matters which ought to have been pleaded, if |