furnished the defendant with proof of the death of the said A. B., and otherwise performed all the conditions of the said policy on [her] part. V. That the defendant has not paid the said sum. [Demand of Judgment.] [Annex a Copy of Policy, marked “Exhibit A.”] No. 124. vii. By Assignee in Trust for Wife of Insured. [TITLE.] . The plaintiff complains, and alleges: I. [Allege incorporation as in No. 118.] II. [Same as in Form No. 122.] III. That on the....day of..... 187., the said A. B. [with the written consent of the defendants, or otherwise, according to the terms of the policy], assigned said policy of insurance to this plaintiff, in trust for E. B., his wife. IV. That up to the time of the death of A. B., all premiums accrued upon said policy were fully paid. V. That on the....day of........ 187., at... said A. B. died. VI. That said A. B. and the plaintiff, each performed all the conditions of said insurance on their part, and the plaintiff, more than....days before the commencement of this action, to wit, on the....day of........, 187., at ..., gave to the defendants notice and proof of the death of said A. B. as aforesaid, and demanded payment of the said sum of........dollars. VII. That the defendant has not paid the same. [Demand of Judgment.] 29. Assigned.—That a policy was duly assigned and transferred, indicates that the assignment was by a sealed instrument, and a consideration is inferred: Fowler v. N. Y. Indem. Ins. Co., 23 Barb. 143; Morange v. Mudge, 6 Abb. Pr. 243. In California all written instruments import a consideration: Civil Code, sec. 1614. No. 125. viii. Accidental Insurance-Insured against Insurer. [TITLE.] The plaintiff complains, and alleges: I. That defendant is a corporation, organized under the laws of the State of New York. II. That on the....day of.... 187., at the City of San Francisco and State of California, in consideration of the payment by plaintiff to defendant of a premium of.... dollars [gold coin], defendant made and delivered to plaintiff its policy of insurance, in writing, upon the life of......, of the City and County of San Francisco and State of California, a copy of which is annexed to this complaint, and marked "Exhibit A," and is made part hereof; and thereby insured the life of said........, in the sum of in the sum of .......dollars [gold coin], against loss of life by personal injury caused by accident, as stated in said policy, for the term of [six] months from and after the....day of.... ......... 187.. III. That afterwards, to wit, on the....day of...... 187., for a valuable consideration, the defendant made and delivered to plaintiff its written consent that said....... might pursue the vocation of supercargo on a sailing vessel during the continuance of the said policy of insurance, without prejudice to said policy, a copy of which consent is hereto annexed as a part of this complaint, and marked "Exhibit B.” ........ ........ IV. That between the....day of........, 187., and the ....day of..... 187., and as plaintiff is informed and believes and avers, on or about.... 187., and while said insurance policy and said written consent were in force, said.......... received a personal injury which caused his death within three months thereafter, and that said injury was caused by an accident within the meaning of said policy of insurance, and the conditions and agreements therein contained, to wit, by the destruction and loss of a certain schooner called........, while said................. was on board of her as supercargo, and not otherwise, by a storm at sea, or other perils thereof, while she was on a trading voyage from the port of San Francisco in said State, to the Aleutian Islands in the North Pacific Ocean, and back to said San Francisco, within the meaning of said policy and written consent, and between the said ...day of................. and said....day of.. V. That plaintiff at the times of making and delivery of said policy and written consent, as aforesaid, was the wife of said... and as such had a valuable interest in his life. VI. That said........and this plaintiff each fulfilled all the conditions and agreements of said policy of insurance on their part, and the plaintiff more than sixty days before the commencement of this action, to wit, on or about the .....day of... ..., gave to the defendant due notice and proof of the death of said...... manded payment of the sum of but no part thereof has been paid. as aforesaid, and de....dollars [gold coin], Wherefore plaintiff prays judgment against defendant for ....dollars [gold coin], and interest on the same, and costs of suit. [Jurat.] Att'ys for Plaintiff. No. 126. [TITLE.] ix. Marine Insurance-On an Open Policy. The plaintiff complains, and alleges: I. [Allege incorporation as in Form 118.] II. That the plaintiff was the owner of [or had an interest in] the ship [name of ship], at the time of its insurance and loss, as hereinafter mentioned. III. That on the......day of... ..., 187., at...... ...., the defendant, in consideration of.......... dollars to it paid [or which the plaintiff then promised to pay], executed to him a policy of insurance upon the said ship, a copy of which is hereto annexed and made part hereof [or whereby it promised to pay to the plaintiff, within......days after proof of loss and interest, all loss and damage accruing to to him by reason of the destruction or injury of the said ship, during its next voyage from. . . . . . to ......, whether by perils of the sea, or by fire, or by other causes therein mentioned, not exceeding...... dollars]. IV. That the said vessel, while proceeding on the voyage mentioned in the said policy, was, on the........day of otherwise]. 187., totally lost by the perils of the sea [or V. That the plaintiff's loss thereby was......dollars. VI. That on the........day of.... 187., he furnished the defendant with proof of his loss and interest, and otherwise performed all the conditions of the said policy on his part. VII. That the defendant has not paid the said loss. [Demand of Judgment.] [Annex Copy of Policy.] 30. Abandonment.-It is not necessary, in an action of covenant on a policy, that the declaration should aver that the plaintiff had abandoned to the underwriters: Hodgson v. Marine Ins. Co., 5 Cranch, 100; and see Columbian Ins. Co. v. Catlett, 12 Wheat. 383; Snow v. Union Mut., etc., Ins. Co., 119 Mass. 592, 31. Agent.-Where the agent of an insurance company was fully authorized to make insurance of vessels, and had, in fact, on a previous occasion, insured the same vessel for the same applicant, and in the instance under consideration actually delivered to him, on receipt of the premium note, a policy duly executed by the officers of the company, filled up and countersigned by himself under his general authority, and having every element of a perfect and valid contract, the fact that after the execution and delivery of the policy the party insured signed a memorandum thus: "The insurance on this application to take effect when approved by E. P. D., General Agent," etc., does not make the previous transaction a nullity until approved: Ins. Co. v. Webster, 6 Wall. U. S. 129. And though the general agent sent back the application, directing the agent who delivered the policy to return to insured his premium note and cancel the policy, the party insured was held entitled to recover for a loss, the agent having neither returned the note nor canceled the policy: Id.; Amer. Law Reg. July, 1868. 32. Form. For a sufficient form of complaint, consult Page v. Fry, 2 Bos. & Pul. 240; Crawford v. Hunter, 8 T. R. 23. 33. Interest of Insured in Lost Property.-The interest of the insured is one of the facts constituting the cause of action: 2 Greenl. Ev., secs. 376, 378-81. And the averment that he gave the defendant due proof of loss and of interest, cannot be construed as an averment that the plaintiff had an insurable interest: Williams v. Ins. Co. of North America, 9 How. Pr. 365. It is the safest practice to aver the interest, when it does not distinctly appear in the policy as set forth or annexed: Phil. on Ins. 612; Ellis on Fire Ins. 175. 34. Interest, How Alleged.-Interest may be more briefly alleged by inserting after the description of the object insured, "then and until the loss hereinafter mentioned, the property of this plaintiff." It need not be averred that the plaintiff was interested at the time of making the policy. In marine insurance, an interest at the commencement of the risk is sufficient (2 Greenl. on Ev. 381; 2 Phil. on Ins. 614); or that the plaintiff was interested in the vessel at the time of the loss, to the extent of the policy: Henshaw v. Mutual Safety Ins. Co., 2 Blatchf. 99. The nature or extent of the trust upon which the interest was held need not be set forth, they being matters of evidence: Id. Where the property is admitted to have been owned by the plaintiff when the policy was issued, the burden of proof is upon the defendants to show a subsequent alienation of the property: Orrell v. Hampden Ins. Co., 13 Gray, 431. 35. Mutuality of Agreement.-In an action on an open policy, providing that the company shall be liable for such sums as shall be specified by application, and mutually agreed upon and indorsed upon the policy, it is necessary to aver that an amount sought to be recovered had been mutually agreed upon, and indorsed upon the policy: Crane v. Evansville Ins. Co., 13 Ind. 446. 36. Nature of the Loss.-The complaint must show a loss of a nature intended to be covered by the insurance: Ellis on Fire Ins. 176; Phil. on Ins. 618. But not to negative possible defenses. And the loss of a vessel insured should be deemed effectual and certain, from the time the vessel was so injured that her destruction became inevitable, and the claim for damage must be deemed to have then attached, although she was kept afloat for some time after such injury: Duncan v. Great Western Ins. Co., 5 Abb. Pr. (N. S.) 173; Pardo v. Osgood, 5 Rob. 348; reversing S. C., 2 Abb. Pr. (N. S.) 365. 37. Parties.-Those who had an interest in a vessel insured, at the time of the fatal injury, may recover upon the policy, notwithstanding the fact of their having subsequently, and before the sinking of the vessel, made an assignment of their interest to others, who are not parties to the action; Duncan v. Great Western Ins. Co., 5 Abb. Pr. (N. S.) 173. 38. Premium, how Alleged. The complaint must aver payment, or a liability to pay the premium: 2 Greenl. Ev. secs. 376-381; Phil. on Ins. 611. 39. Risks.-Capture, though not enumerated, is one of the risks where the enumeration of risks was in the English form, and upon a loss the company was liable: The Merchants' Ins. Co. v. Edmund, 17 Grat. (Va.) 138. 40. Terms. As to the terms of an insurance policy, whether it be by a marine insurance or by a fire insurance, designated in the usual terms of policies, see Eureka Ins. Co. v. Robinson, 56 Penn. St. 256; also, American Horse Ins. Co. v. Patterson, 28 Ind. 17. 41. That the Ship Sailed.—The inception of the risk is an essential fact to be proved: 2 Greenl. Ev. sec. 382. [TITLE.] No. 127. X. On Cargo Lost by Fire- Valued Policy. The plaintiff complains, and alleges: I. [Allege incorporation, as in Form 118.] II. The plaintiff was the owner of [or had an interest in] [two hundred barrels of flour], shipped on board the vessel called the A. D., from .. to ..... time of the insurance and loss hereinafter mentioned. at the |