of insurance by simultaneous policies.1 When there was overinsurance on the same policy, as where several underwriters subscribed the same instrument, it was formerly held that the first underwriters were held for the whole, and the subsequent ones discharged. But the law is otherwise now.3 Clauses have frequently been inserted in policies making the premium returnable on certain contingencies, as if the vessel sails with convoy and arrives; in which case, although a large part of the cargo insured is lost, if the vessel sails with convoy and arrives, the underwriters are liable.1 tained the following clause: "Provided, that if the assured shall have made any other assurance upon the premises prior in date to this policy, then the insurers shall be answerable only for so much as the amount of such prior insurance may be deficient, etc., and shall return the premium on so much of the sum assured as they shall by such prior assurance be exonerated from." Held, that the former clause referred to a prior insurance, and that there was to be no return for a subsequent insurance. 1 Wiggin v. Suffolk Ins. Co., 18 Pick. 145, 153; Potter v. Mar. Ins. Co., 2 Mason, 475. 2 African Ins. Co. v. Bull, 1 Show. 132. See ante, p. 96–99. * Simond v. Boydell, 1 Doug. 268. See also, Aguilar v. Rodgers, 7 T. R. 421; Horncastle v. Haworth, Marsh. on Ins. 674; Audley v. Duff, 2 B. & P. 111; Castelli e. Boddington, I Ellis & B. 66, 16 Eng. L. & Eq. 127. In Langhorn v. Allnutt, 4 Taunt. 510, the jury found that in case of a total loss on goods, the premium could not be recovered in addition to a total loss, although the event on the happening of which the premium was to be returned had taken place. The reason assigned was, that the amount of the premium might be added to the invoice price in making up the amount to be included in the total loss. In Ogden v. N. Y. Firem. Ins. Co., 12 Johns. 114, the voyage insured was from Malta to St. Petersburg, fifteen per cent. to be returned, "if the risk ends in safety at Gottenburg." It was held, that it was not necessary, in order to secure a return of premium, that the vessel should actually arrive in safety at Gottenburg; but that the effect of this clause was to divide the risk, and that the fifteen per cent. was to be returned in case the risk from Gottenburg to St. Petersburg was not run. In Robertson v. Columbian Ins. Co., 8 Johns. 491, a condition on which the premium was to be returned, was that "the risk end safely." The part of the premium was returned, although the ship suffered much damage on the voyage, the underwriters having been discharged from the loss by a deviation. But it seems that if the condition is the arrival of the vessel, it must actually arrive, and it will not be sufficient, if the arrival is prevented by the happening of an event which discharges the underwriters. Kellner v. Le Mesurier, 4 East, 396. See also, Dalgleish v. Brooke, 15 East, 295. In Hunter v. Wright, 10 B. & C. 714, the stipulation, in a policy on a vessel for one year, was "for a return of part of the premium, if sold or laid up, for every uncommenced month." The vessel was laid up during several months, but was employed again during the year. It was held, that no part of the premium need be returned. 17 VOL. II. If there be any illegality or fraud on the part of the insurer, as if, before he makes the policy, he knows that the risk has terminated safely, he must return the premium, because he has never assumed the peril for which it pays. But, generally, the mere avoidance of the contract of insurance by reason of illegality gives no right to return of premium, because both parties are equally in the wrong; and the maxim, in pari delicto potior est conditio possidentis, applies.2 If, however, the illegality of the insurance was known to neither party when it was effected, the premium must be returned. If the policy is Lord Tenterden, C. J., said: "I am of opinion that the words laid up being in company with the word sold, must mean a permanent laying up, similar to that which would take place if the ship had been sold; that is, such a laying up as would put a final end to the policy." In Poutz v. La. Ins. Co., 16 Mart. La. 80, it was held, that the entry of French troops into Spain was an act of war within a clause in the policy providing for a return of part of the premium in case no act of war took place between France and Spain, although war had not been formally declared. 1 In Carter v. Boehm, 3 Burr, 1905, 1909, Lord Mansfield, C. J., said: “The policy would equally be void against the underwriter if he concealed; as if he insured a ship on her voyage, which he privately knew to be arrived and an action would lie to recover the premium." See also, Duffell v. Wilson, 1 Camp. 401. 2 Lowry v. Bourdieu, 2 Doug. 468; Andree v. Fletcher, 3 T. R. 266; Vandyck v. Hewitt, 1 East, 96; Morck v. Abel, 3 B. & P. 35; Lubbock v. Potts, 7 East, 449; Cowie v. Barber, 4 M. & S. 16; Juhel v. Church, 2 Johns. Cas. 333. Consequently the underwriter cannot maintain an action on a premium note if the insurance was illegal. Russell v. De Grand, 15 Mass. 35. In Browning v. Morris, 2 Cowp. 790, Lord Mansfield, C. J., said, after stating the general rule: "But where contracts or transac tions are prohibited by positive statute, for the sake of protecting one set of men from another set of men; the one from their situation and condition being liable to be oppressed or imposed upon by the other; there the parties are not in pari delicto." It has, therefore, been held, that the premium paid for insuring lottery tickets may be recovered back. Jaques v. Golightly, 2 W. Bl. f073; Jaques v. Withy, 1 H. Bl. 65. See also, Lacaussade v. White, 7 T. R. 535. The question has arisen whether a party effecting an illegal insurance, and having paid the premium, has not a locus pœnitentiæ, so that he can rescind the contract, and recover the premium, before a loss occurs. It was held that he might, in Tappenden v. Randall, 2 B. & P. 467 ; Wharton v. De La Rive, Park, Ins. 513; and in Aubert v. Walsh, 3 Taunt. 277. This view is also supported by Buller, J., in Lowry v. Bourdieu, 2 Doug. 468. But in Palyart v. Leckie, 6 M. & S. 290, it was held, that, to entitle the assured to recover back the premium in such a case, he must have made a formal renunciation of the contract prior to the bringing of the action, although the adventure had never commenced; and Lord Ellenborough, C. J. expressed his regret that the rule of locus pœnitentia was ever adopted. Thus, where the insured is the subject of a foreign country, with which war has been declared, if the parties are ignorant of it at the time the insurance is effected, the premium may be recovered back. Oom v. Bruce, 12 East, 225; Henry v. Staniforth, 4 Camp. 270; Hentig v. Staniforth, 5 M. & S. 122. avoided ab initio by a misrepresentation or concealment, the premium is to be returned,1 unless the assured had been guilty of fraud.2 If the premium has not been paid, then the right to a return of it becomes simply a defence against any claim for it. But if it was paid by a negotiable note, which has been or perhaps if it only might have been-put into circulation, the insured being liable upon it to a third party, he is entitled to his return premium in the same way as if he had paid it in cash. If a policy be assigned, the right to a return of premium does not pass with it.4 1 Anderson v. Thornton, 8 Exch. 425, 20 Eng. L. & Eq. 339; Feise v. Parkinson, 4 Taunt. 640. It seems formerly to have been the practice in Chancery to decree a return of preminm, when a policy was decreed to be delivered up on the ground of fraud. See Wilson v. Ducket, 3 Burr. 1361, per Lord Mansfield, C. J.; Whittingham v. Thornburgh, 2 Vernon, 206; De Costa v. Scandret, 2 P. Wms. 170. And per Lewis, J., in Delavigne v. United Ins. Co., 1 Johns. Cas. 310. In Wilson v. Ducket, Lord Mansfield was in doubt whether in such a case the premium should be returned in a court of law or not. It was not necessary to decide the question in that case, as the premium was brought into court by the insurer. But it is now settled that in a court of law where there is actual fraud on the part of the assured, the premium is not returnable. Tyler v. Horne, Park, Ins. 285, Marsh. on Ins. 652; Chapman v. Fraser, Park, Ins. 286. In Hoyt v. Gilman, 8 Mass. 336, 340, the assured fraudulently withheld information material to the risk. It was held, that he was entitled to no return of premium. See also, Schwartz v. U. S. Ins. Co., 3 Wash. C. C. 170; Himely v. S. Car. Ins. Co., 3 Const. Rep. 154. In Langhorn v. Cologan, 4 Taunt. 329, the policy was void on account of an alteration made by the assured subsequent to the signing. Held, that the premium need not be returned. In Waters v. Allen, 5 Hill, 421, the risk was divisible, and, during the first part, the policy was avoided by the fraudulent destruction of the vessel by the agents of the assured. It was held, that the premium was, nevertheless, returnable for the other part of the risk, on the ground that it was not necessary for the assured to set up his own fraud, but only the fact that there was no commencement of that part of the risk. Mr. Phillips seems to be of the opinion, on the authority of a case stated by Mr. Ellis, Duckett v. Williams, Ellis on F. & L. Ins. 142, that where a policy is void in consequence of the fraudulent misrepresentation of an agent without the knowledge of his principal, the latter may recover the premium. 2 Phillips, Ins. § 1845. But the true rule, deducible from the case cited, seems to us to be that where A. has an interest in the life or property of B. and causes it to be insured, although the policy may be avoided by the fraudulent representations of B., still A. can recover back the premium. * See ante, p. 183, n. 3 and 4, as to the payment of premium in England. In Hem 4 Felton v. Brooks, 4 Cush. 203; Castelli v. Boddington, 1 Ellis & B. 66, 16 Eng. L. & Eq. 127. menway v. Bradford, 14 Mass. 121, a promissory note had been given for the premium, which still remained unpaid, and had never been negotiated. Per Curiam. "It has been repeatedly decided, in this court, that when the assured is entitled to a return of premium, he may recover the amount in an action for money had and received; although his note given for the premium should not have been paid. The underwriter, by the terms of the policy, expressly acknowledges the receipt of the premium; and whether it was paid to him in cash, or in merchandise, or by a negotiable note, or in any other manner, the action to recover it back will still be in the same form." The giving of a promissory note is, in Massachusetts, primâ facie payment. This view of the nature of a promissory note may have influenced this decision, so as to affect its weight as an authority in other courts. CHAPTER VI. OF THE DESCRIPTION OF THE PROPERTY INSURED. THE property insured should be set forth in the policy, or the means of further description referred to, in such a way that the subject-matter of the insurance can be distinctly identified. This seems to be the only general rule on the subject; but there are many subordinate and subsidiary rules. And usually, much latitude of construction is allowed in applying the terms used in a policy to the interest of the assured. For if the assured has concealed any fact respecting his interest which it is material for the insurer to know, the latter can set up the concealment as a defence. If there has been no concealment, it seems unjust that the assured should suffer, even if only a liberal construction can bring his interest within the terms of the policy. This seems to be a reason for construing policies of insurance, in favor of the assured, with greater liberality than other contracts; and such, to some extent, appears to have been the policy and practice of some courts. If the description be, on the whole, sufficient for identification, a mere mistake in a name or other part of it will not avoid the policy.1 1 In Ruan v. Gardner, 1 Wash. C. C. 145, the agent of the insured, by mistake, described the goods as marked (D), on board the Brothers. The goods were on board the vessel named, but not marked as described. Mr. Justice Washington said: "It was perfectly immaterial to the risk what were the marks on the hogsheads, provided the risk undertaken by the underwriters was neither changed nor increased. Nor was this the case since it is in proof that the plaintiff shipped but five hogsheads on board the Brothers. If, indeed, he had had more, some marked D, and others with other marks, and a partial loss had happened, it would not have been competent to the plaintiff to shift from one mark to another so as to alter the risk and possibly make the underwriters liable for hogsheads not insured. But this was not, and could not, be the case in the present instance." In the common form of policies there is usually added to the name given to the ship the clause, “or by whatsoever other name or names the said vessel shall be named or 1 |