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Where indorsements are unnecessarily mentioned, as in claiming upon a note made to payee or bearer, they must, if traversed, be proved. Waynam v. Bend, 1 Camp. 175. But semb., the finding on such issues will be immaterial, if the plaintiff appear to be bearer; and the indorsements may be struck out at the trial. See Macgregor v. Rhodes, infra.
Where A. made a promissory note payable to B.'s order, on demand, and gave it him as security for a debt, for which A. afterwards gave B. a mortgage; A. transferred the mortgage to C., and received payment from him, and indorsed the note for value to D., who took without notice. A. was held to have no defence to an action on the note by D. Glasscock v. Balls, 24 Q. B. D. 13, C. A.
Indorsee against Indorser. In an action by an indorsee against the indorser of a promissory note, the traversable allegations are, the defendant's indorsement; the presentment to the maker; his default; and notice to the defendant of the dishonour.
By sect. 87. “ (2.) Presentment for payment is necessary in order to render the indorser of a note liable.
“(3.) Where a note is in the body of it made payable at a particular place, presentment at that place is necessary in order to render an indorser liable; but when a place of payment is indicated by way of memorandum only, presentment at that place is sufficient to render the indorser liable, but a presentment to the maker elsewhere, if sufficient in other respects, shall also suffice.'
It seems that sect. 56 does not apply to notes, vide ante, p. 242.
In what manner an indorsement may be proved has been already stated, ante, pp. 360 et seq. An indorsement admits all prior indorsements, and also the handwriting of the maker. Lambert v. Oakes, 1 Ld. Raym. 443; Free v. Hawkins, Holt, N. P. 550 ; Macgregor v. Rhodes, 6 Ě. & B. 266; 25 L. J., Q. B. 318.
In what manner a note or bill of exchange must be presented for pay, ment has been stated ante, p. 367. A promissory note must be presented within a time which is reasonable, under all the circumstances. Chartered Mercantile Bank of India, &c. v. Dickson, L. R., 3 P. C. 574.
It has been before stated by and to whom, and within what time, notice of dishonour must be given, and what will be considered sufficient proof of the delivery of the notice and of its contents, &c., ante, pp. 370 et seq. It has also been shown in what cases proof of notice may be dispensed with by an acknowledgment or otherwise, ante, pp. 376 et seq. Where the payee of a note indorses it for the accommodation of the maker, it is still necessary to give notice to the payee in order to charge him as indorser, and oral evidence is not admissible that it was agreed between the parties that the note should not be put in force until after a given event. Free v. Hawkins, 8 Taunt. 92.
Evidence under money claims.) An indorsement is evidence of money lent by the indorsee to the indorser. Keesebower v. Tims, Bayley on Bills, 6th ed., 363.
Damages generally. Vide sect. 57, ante, p. 383.
Defences, generally, to Actions on Promissory Notes. Vide ante, p. 384.
ACTION ON POLICY OF INSURANCE.
Marine Insurance. The plaintiff may be called upon to prove the following facts : -- viz., the subscription or execution of the policy by the defendant; the interest of the party as averred; the putting of the goods, &c., on board, when the policy is on goods; the inception of the risk; compliance with warranties; a licence for the purpose of legalising the voyage, in some cases ; the loss; and amount of it.
Form of policy.] The form of the policy is, in a great measure, regulated by the Stamp Act, 30 & 31 Vict. c. 23, the provisions of which Act will be found ante, pp. 262, 263. As to the effect of an insurance slip, vide ante, p: 263. An open cover or proposal by A. to insure before the goods to be insured were shipped, given to M. that he might give it to the charterer, B., is a subsisting proposal, and on application by B. after the goods are shipped, there is a contract with him to issue a policy in terms of the open cover. Bhugwandass v. Netherlands, &c., Insur. Co. of Batavia, 14 Ap. Ca. 83, P. C.
The policy is sometimes so framed that no action is maintainable on the policy till the loss has been adjusted. Tredwen v. Holman, 1 H. & C. 72; 31 L. J., Ex. 398. But on this case see Edwards v. Aberayron Mutuai Ship Insur. Soc., 1 Q. B. D. 563, 596, per Brett, J.
It is immaterial in what part of the policy the_subject-matter of insurance appears.
Griffiths v. Bramley-Moore, 4 Q. B. D. 70, C. A. Assignment of policy.] By the Policies of Marine Insurance Act, 1868 (31 & 32 Vict. c. 86), s. 1, it is enacted that, "whenever a policy of insurance on any ship, or on any goods in any ship, or on any freight, has been assigned, so as to pass the beneficial interest in such policy to any person entitled to the property thereby insured, the assignee of such policy shall be entitled to sue thereon in his own name; and the defendant in any action shall be entitled to make any defence which he would have been entitled to make if the said action had been brought in the name of the person by whom or for whose account the policy sued upon was effected.” Sect. 2, the assignment may be made by indorsement, in the form given in the schedule to the Act. And see now J. Act, 1873, s. 25(6), ante, p. 300.
The Act applies to the case of an assignment of the policy, after loss ; Lloyd v. Fleming, L. R., 7 Q. B. 299; but not where the policy has lapsed; N. of England, &c. Co. v. Archangel Maritime Insur. Co., L. R., 10 Q. B. 249. It will not extend to an agreement only for an assignment. See Spencer v. Clarke, 9 Ch. D. 137. As to raising a defence under the latter part of this section, vide post, p. 432.
Proof of the Policy.) On a defence denying the making of the policy, the policy must be produced and proved; and if subscribed by an agent of the defendant, the handwriting and authority of the agent must be proved. If the authority of the agent were in writing it should generally be produced; but the authority may also be proved by showing that the defendant has recognized the act of the agent in this instance, or in other similar instances in which he has subscribed policies for the defendant; as where a witness stated that he was authorized by power of attorney, but added, that the defendant had been in the habit of paying losses upon policies which the witness had subscribed in his name, the power need not be produced. Haughton v. Ewbank, 4 Camp. 88; Brocklebank v. Sugrue, 5 0. & P. 21. Where a witness proved the agent's handwriting, and swore that he had often observed him sign policies for the defendant, but did not know that the defendant had given any authority to sign that policy, Ld. Kenyon held the agency proved ; Neal v. Erving, 1 Esp. 61 ; but where the witness added that he did not know of any instance in which the defendant had paid a loss upon any policy so subscribed, Ld. Ellenborough held the proof of agency was incomplete; Courteen v. Touse, 1 Camp. 43, n. The authority given to an insurance broker to effect a policy does not extend to warrant him in cancelling it. Xenos v. Wickham, L. R., 2 H. L. 296.
A custom that an agent's authority to underwrite policies is limited to a particular sum is good, although the assured is not aware of the limitation, and if the agent exceed the sum, the principal is not bound by the policy at all. Baines v. Ewing, L. R., 1 Ex. 320.
As to insurance on an open policy, on goods in ships, to be afterwards declared, see Ionides v. Pacific, &c. Insurance Co., L. R., 6 Q. B. 674; L. R., 7 Q. B. 517, Ex. Ch.; Stephens v. Australasian Insur. Co., L. R., 8 C. P. 18; Imperial Marine Insur. Co. v. Fire Insur. Cor., 4 C. P. D. 166.
In the case of incorporated joint-stock companies for insurance the policies often provide expressly on the face of them that the capital stock and funds of the company shall alone be charged, and that no proprietor shall be liable beyond his share in it. In such cases the insured cannot sue the proprietors as general partners jointly liable in solido, even if the stock and funds be adequate; and it is questionable whether such a policy amounts to a joint contract at all, or to a contract with each proprietor in proportion to his share, or to a separate contract with the directors who signed the policy in pursuance of the deed of settlement. See Halket v. Merchant Traders’ Insurance Co., 13 Q. B. 960; Hallett v. Dowdall, 18 Q. B. 2; 21 L. J., Q. B. 98, Ex. Ch.
The usage of a particular trade will be regarded in the construction of policies, and every underwriter is supposed to be acquainted with it. Noble v. Kennoway, 2 Doug. 510, and cases cited ante, pp. 22 et seq. As to the stamp and alteration of the policy, see ante, pp. 261, 264.
An action will lie at the suit of the agent or other person in whose name the insurance was effected; Provincial Insur. Co. of Canada v. Leduc, L. R., 6 P. C. 224; and a principal may ratify an insurance made for his benefit after knowledge of loss; Williams v. N. China Insur. Co., 1 C. P. D. 757; or the action may be brought in the name of the person interested, vide ante, p. 92. Policies are frequently under seal, but the matters to proved are substantially the same whatever be the form of the statement of claim.
Interest in the ship, how proved.] Insurances without interest, or wagering policies, on British ships, or goods therein, are void by 19 Geo. 2, c. 37, s. 1, and the interest must be proved otherwise than by the policy itself. Interest is not in issue unless traversed. In the case of foreign ships, interest need not be alleged or proved. Thellusson v. Fletcher, 1 Doug. 315; Craufurd v. Hunter, 8 T. R. 13; Nantes v. Thompson, 2 East, 385.
The interest in the ship, as stated in the claim, may be proved, prima facie, by evidence of possession of the ship; or, of acts of ownership, as directing the loading of the ship, purchasing the stores, paying the people employed, &c. Amery v. Rogers, 1 Esp. 209; Thomas v. Foyle, 5 Esp. 88. A common mode of proof is to call the master, who will prove that he was appointed and employed by the parties in whom the interest is averred ; and, though it should appear on cross-examination, that the plaintiff claims under a bill of sale, it is not, on that account, necessary for him to produce the bill, or the ship’s register, unless such further evidence should be rendered necessary in support of the primâ facie proof of ownership, in consequence of proof to the contrary. Robertson v. French, 4 East, 136; Pirie v. Anderson, 4 Taunt. 652. Where the interest is arerred in persons who have never been in possession of the ship, it may be proved by showing the ownership of the persons under whom such parties claim, and the derivative title from them—viz., the bill of sale; but now, by the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), 8. 107, and 18 & 19 Vict. c. 91, s. 15, the register, or an examined or certified copy thereof, may now be used as primâ facie proof of ownership. See Effect of ship's register, ante, p. 216.
Interest in Ship-Insurable Interest.] A person who lends money for repairs of a ship has no insurable interest in it, and, as a master has no power to hypothecate, an hypothecation of the ship by the master gives no insurable interest to such a creditor. Stainbank v. Fenning, 11 O. B. 51; 20 L. J., C. P. 226; Stainbank v. Shepard, 13 C. B. 418; 22 L. J., Ex. 341, Ex. Ch. And, quære, whether a valid hypothecation would give such interest. S. O. C.
If the assured assign away his interest in the ship before the loss he cannot recover, except as trustee for the assignee, where there has been an agreement that it shall be kept alive for the benefit of the latter. Powles v. Innes, 11 M. & W. 10; N. of England Oil Cake Co. v. Archangel Ins. Co., L. R., 10 Q. B. 249. But an assignment by way of mortgage, though in terms absolute, will not prevent the assured from recovering. Ward v. Beck, 13 C. B., N. S. 668; 32 L. J., C. P. 113.
Interest in goods, how proved—Bill of lading.] The interest in goods may be proved primâ facie, like the interest in the ship, by evidence of possession and acts of ownership. It is also frequently proved by the production of the bill of lading. A bill of lading directing the delivery of the goods to the consignee is evidence of interest in him, the captain proving that he received the goods under it; M'Andrew v. Bell, 1 Esp. 373; and where the goods are made deliverable to the consignor, the bill indorsed by him, either specially or in blank, is evidence of interest in the indorsee, or holder; Lickbarrow v. Mason, 2 T. R. 71 ; but such evidence is primâ facie only, and not conclusive; Seagrave v. Union Marine Insurance Co., L. R., 1 C. P. 305. The signature of deceased master to the bill of lading, as it has the effect of charging himself, is evidence of the interest of the consignee; but, if the master qualifies his acknowledgment by the words "contents unknown,” it is then no evidence per se. Haddow v. Parry, 3 Taunt. 303. Where, to prove property in a cargo by purchase beyond seas, the plaintiff produced a bill of parcels of one G., at Petersburg, with his receipt to it, and proved his hand, Lee, C. J., admitted it as evidence against the insurers. Russel v. Boheme, Str. 1127.
Interest in goods—Insuruble interest.] An averment that the plaintiffs were interested in the profits to arise from the sale of goods which H. & Co. had sold to them, is not satisfied by showing an oral agreement for the sale to the plaintiffs not capable of being enforced against H. & Co. Stockdale v. Dunlop, 6 M. & W. 224. A mere equitable interest in goods is an insurable one; thus, where A., being indebted to B., indorses a bill of lading to C., with a letter telling him to hold the goods in trust for B., B. has an insurable interest; Hill v. Secretan, 1 B. & P. 315; but a mere agent, who has not possession, nor any lien on the goods, has no insurable interest in them. Seagrave v. Union Marine Insur. Co., ante, p. 407. A lien on goods is insurable; as, where the plaintiff, owner of a ship, which had been abandoned, but afterwards brought into harbour, together with goods, by salvors, was obliged to pay the whole salvage, and thereby acquired a lien on the cargo for contribution in the nature of general average; Briggs v. Merchant Traders' Insur. A88., 13 Q. B. 167; such interest is sufficiently described as average expenses. S. C. A person who insures goods lost or not lost may recover, though he acquired his interest after a partial loss of them, if he bought without knowledge of the loss. Sutherland v. Pratt, 11 M. & W. 296. But, after knowledge of loss, no assent or election by the purchaser to the appropriation of goods under a contract of sale will enable him to throw a liability on the assured which did not exist at the time of loss. Anderson y. Morice, L. R., 10 C. P. 609, Ex. Ch.; 1 Ap. Ca. 713, D. P. The question whether A. has an insurable interest in goods contracted to be sold to him depends on whether he is liable for the price whether they be lost or not. S. C. ; Stock v. Inglis, 12 Q. B. D. 564, C. A.; 10 Ap. Ča. 263, D. P. See also Colonial Insur. Co. of New Zealand v. Adelaide Marine Insur. Co., 12 Ap. Ca. 128, P. C. It is sufficient if the policy specify the subjectmatter of insurance, and it is not necessary to describe the assured's interest in it, unless his interest is such as to affect the risk insured against. Dixon v. Whitworth, 4 C. P. D. 371, 375 (reversed in C. A., on another point, W. N. 1880, p. 43, H.S.), following Mackenzie v. Whitworth, L. R., 10 Ex. 142; 1 Ex. D. 36, Ex. Ch. Thus, an underwriter
on goods” may re-insure by the same description; and the policy need not be expressed to be a re-insurance. S. C. The assignee, after loss, of the policy of insurance, may now recover in his own name, vide ante,
If it be averred that the plaintiff was interested at the time of effecting the policy, it is immaterial; it is sufficient to show that he was interested at the commencement of the risk. Rhind v. Wilkinson, 2 Taunt. 237. Where a policy was effected for all persons interested, and B. was in fact interested at the time, but had not authorized the insurance, it is sufficient to prove an adoption of the policy by B. after the loss. Hagedorn v. Oliverson, 2 M. & S. 485; Cory v. Patton, L. R., 9 Q. B. 577.
As to the right of a particular owner to insure goods for their full value, for the benefit of himself and the general owner, see Ebsworth v. Alliance Marine Insur. Co., L. R., 8 C. P. 596, where the proper averment of interest is also discussed. The judgment in this case was reversed in the Ex. Ch. upon terms, the damages being reduced so as to represent the loss sustained by the plaintiff alone. See 43 L. J., C. P. 394, n.
By the Merchant Shipping Act Amendment Act, 1862 (25 & 26 Vict. c. 63), s. 55, insurances against (1) loss of life or personal injury caused to any person carried in any ship; (2) damage or loss caused to any goods, merchandize, or other things whatsoever on board any ship; (3) loss of life or personal injury, by reason of the improper navigation of any ship, caused to any person carried in any other ship or boat; (4) loss or damage, by reason of the improper navigation of any ship, caused to any other ship or boat, or to any goods, merchandise, or other things whatsoever on board any other ship or boat, and occurring without the actual fault or privity of the owners, shall not be invalid by reason of the nature of the risk.