CHAPTER THE FIRST. OF THE POLICY. POLICY is is the name given to the inftrument, by which the contract of indemnity is effected between the infurer and infured; and it is not, like most contracts, figned by both parties, but only by the infurer, who on that account, it is fuppofed, is denominated an underwriter. Notwithitanding this, there are certain conditions, of which we fhall hereafter have occafion to fpeak, to be performed as well by the perfon not fubfcribing, as by the underwriter, otherwife the policy will be void. Of policies there feem to be two kinds, valued and open policies; and the only 2 Burr. 1171. difference between them is this, that in the former, goods or property infured are valued at prime coft, at the time of effecting the policy; in the latter, the value is not mentioned: that in the cafe of an open policy, the real value must be proved; in a valued policy it is agreed, and is juft as if the parties had admitted it at the trial. Although policies of affurance are not fpecial- Skinn. 54. ties, but efteemed merely as parol contracts, yet they have always been held as facred agreements, and of the first credit: fo much fo, that when once they are underwritten, they can never be altered by any authority whatever; because it would open a door to an infinite variety of frauds, and introduce uncertainty into a fpecies of contract, of which certainty and precifion are the most effential requifites. Henkle v. In a cafe before Lord Chancellor Hardwicke, this doctrine was admitted in its full extent. The plaintiff had infured a fhip at and from London to Ofend, from thence to Rotterdam, from thence to the Canaries, warranted an Oftend fhip, which fhip was afterwards taken. The bill was brought to have the policy rectified, for that the intention of the parties was miftaken therein, which was, that the warranty was too general, and that the voyage fhould have been ftated to take place from Oftend only, and not from London. The evidence in this cafe was the depofition of Knox, the agent for the company, who depofed, that the plaintiff applied to him to infure the fhip, and that he believed the plaintiff told him, fhe was, or had been an Englifh fhip, and might fay fomething concerning the manner or intent of making her an Oftend fhip; but that his anfwer was, that he would not enter into the manner, but that if the plaintiff would warrant her to be an Oftend fhip, he would infure; and that on thofe terms, and no other, the agreement was made. There was the evidence of another perfon, who varied from Knox; in addition to which it was faid, there was the evidence arising from circumstances, for that it was impoffible for the plaintiff to intend to infure her as an Oftend fhip, the being then in London, and could not be an Ofend fhip without going to Offend; for which proof was read that it was neceffary the fhould be registered. Lord Chancellor.-The first question is, whether it fufficiently appears to the court, that this policy, which is a contract in writing, has been framed contrary to the intent and real agreement. It is certain, that to come at that, there ought to be the strongest proof poflible, for the agreement is twice reduced iato writing in the fame words, and must have the fame conftruction: and yet the plaintiff feeks, contrary to both thefe, to vary them, and that in a cafe, where his witneffes vary from each other. The fingle depofition, upon which it depends, is very uncertain; and imports, that they relied on the plaintiff's warranty, leaving the tranfaction relating to the manner of making her an Oftend ship entirely to himself. His Lordship, therefore, as there was no evidence to vary the contract from the written words, ordered the bill to be dif miffed. At the fame time it must be observed, that cafes frequently may, and do exift, in which a policy, upon proper evidence, may be altered, without any violation of the principles above laid down, which has been often done by the courts both of law and equity; for let it be remembered once for all, that in queftions of infurance, which is a contract founded upon broad equitable principles, courts of common law are bound by the fame rules of decifion as courts of equity. After figning, policies are likewife frequently altered by confent of the parties; and fuch policies are good, agreeably to the maxim, confenfus tollit errorem. An inftance of the former kind of alteration of Motteux v. a policy occurs in the chancellorship of Lord Hard- the Gov, and Comp. of the wicke, to whofe decifion we laft referred. The London Affuinfurance was upon the fhip five hundred pounds, rance. and the policy ftated, that the adventure was to 1Atkyns545. commence immediately from the departure of the fhip from Fort Saint George to London. The bill was brought by the plaintiff, fuggefting that the owner had employed a Mr. Halbead to infure the ship with the defendants, to commence from her arrival at Fort Saint George; that a label, agreeable to thofe inftructions, with all the particulars of the agreement, had been entered in a book, and fubfcribed by Halhead, and two of the directors of the company; that by a mistake the policy was made out different from the label; that the fhip being loft in the bay of Bengal, after her arrival at Fort Saint George, but before her departure for England, the company refufe to pay; upon thefe. fuggeftions, the plaintiff prayed that the mistake might be rectified, and that the company might Batesv.Grabham. be ordered to pay five hundred pounds with intereft. His Lordship was of opinion, that the label was a memorandum of the agreement, in which the material parts of the policy were inserted; that although the policy was ambiguous, the label made it clear; and as it was only a mistake of the clerk, it ought to be rectified according to the label. In an action upon a policy of infurance, and non affumpfit pleaded, the facts were, that Stubbs, a Salkeld 444. broker, had inftructions to procure an insurance on goods on board the Mary Galley, of Saint Chriftophers, Captain A. Hill, commander: that Stubbs, in writing the policy, by miftake, made the infurance on the Mary, Captain Haflewood, commander, which was fubfcribed by the defendant: that the. Mary Galley was loft, and then Stubbs applied to the infurers to confent to alter the policy, to which they agreed. It was urged, that on account of the alteration, the defendant fhould have an increafe of premium, the fhip Mary being ftouter than the Mary Galley. But Holt, chief justice, ruled, that the action well lay upon the policy, and that the mistake might be fet right. A policy of infurance, when effected, becomes the property of the infured; and if it be wrongfully withheld, either by the broker employed by him to effect it, or by any other perfon to whofe hands. it may happen to come, he may maintain an action of trover for it, as well as for any other species of property. Harding v. Thus an action of trover was brought against the Carter, and defendants for two policies of infurance. The deanother: - fendants were brokers, who had written to the tings at plaintiff, the matter of a veffel, that they had got Guildhall, two policies effe&ted; the one on account of the Lon, 1731. plaintiff's cloaths and wages, the other on account. of the owners, and that the underwriter was Mr. Newnham. A lofs having happened, the defendants produced a policy, underwritten by one 7. S. Ealler vaca only only infuring the fhip, in which the plaintiff had no intereft. Lord Mansfield.-I fhall confider the defendants as the actual infurers, and therefore the plaintiff must prove his intereft and lofs. The defence fet up was, that the letter above stated in'evidence was written by the defendant's clerk through mistake; and it was faid, that trover could not be maintained for that which never exifted: but his Lordfhip would not fuffer the defendants now to contradict their own reprefentation; and the plaintiff accordingly had a verdict to the amount of his intereft, the premium being deducted. It is material to obferve, that policies of infurance, though called written inftruments, are, for the convenience of trade, and the dispatch of bufinefs, generally printed, leaving blanks for the infertion of names and all other requifites. This being the cafe, it is frequently neceffary to infert written claufes, in order to exprefs the meaning of the parties to the contract, which, from fome particular circumstances, the printed form may not fufficiently explain. Thefe written claufes and conditions, thus inferted, are to be confidered as the real contract; the court will look to them. to find out the intention of the parties, and will confequently fuffer fuch conditions to controul the printed words in policies of infurance. Having premifed thus much of policies in general, it may be proper to confider this fubject in a threefold point of view: Firft, what perfons may be infurers; Secondly, what things may be infured; Thirdly, what the requifites of a policy are. ift. What perfons may be infurers. It should feem, that by the common law and ufage of merchants, any perfon whatever might be an infurer, however unable he might be, from poverty, to make up the loffes infured againft, provided the merchant was weak enough to truft to fuch a fecurity. In procefs of time, however, there were many who made a fhew of great wealth, in or fo |