III. That on the day of the defendant, in consideration of 187., at dollars which the plaintiff then paid, executed to him a policy of insurance upon the said goods, a copy of which is hereto annexed, marked "Exhibit A," and made part of this complaint [or whereby it promised to pay to the plaintiff dollars in case of the total loss, by fire .......... or other causes mentioned, of the said goods, before their landing at ., or, in case of partial damage, such loss as the plaintiff might sustain thereby, provided the same should exceed per centum of the whole value of the goods]. .... IV. That on the .... day of .... ........" while proceeding on the voyage mentioned in the said policy, the said goods were totally destroyed by fire. V. That the plaintiff's loss thereby was dollars. VI. That on the .... day of ..... 187., he fur nished 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.] 66 [Annex Copy of Policy, marked “ Exhibit A.”] 42. Goods. If the insurance was upon the goods to be laden, state that they were laden, and their loss: Marsh on Ins. (3 ed.) 244-5, 278, 724. 43. Interest, how Alleged.-In a declaration upon a policy of insurance on the cargo of a canal boat, it was held a sufficient averment of the plaintiff's interest to allege that the insurance was "for the account and benefit of the plaintiff as a common carrier, for hire," etc.; and a sufficient averment of the liability incurred, to state that an amount of goods exceeding that mentioned in the policy was intrusted to him as a carrier, and that they were consumed by fire, and the plaintiff thereby became liable to pay to the respective owners a greater sum than that insured. It is not necessary to aver actual payment: Van Natta v. Mutual Security Ins. Co., 2 Sandf. 490; and see De Forest v. Fulton Fire Ins. Co., 1 Hall, 84. 44. Time Policy.-As to manner of pleading a want of seaworthiness to an action on a time policy, see Jones v. The Insurance Company, 2 Wall. Jr. C. Ct. 278. 45. Valued Policy, Allegation of.—That on, etc., at, etc., in consideration of the premium of .... dollars, then and there paid to them by the plaintiff, the defendants, by their agents duly authorized thereto, made their policy of insurance in writing, of which a copy is annexed, marked **Exhibit A," and thereby insured for him dollars upon the ship to mentioned. then lying in the harbor of .................. ....... for a voyage from .... against the perils of the seas, and other perils in the policy The plaintiff complains, and alleges: I. [Allege incorporation as in Form 118.] II. That he had an interest in the freight to be earned. by the ship [Flying Mist], on her voyage from to ... at the time of the insurance and loss herein after mentioned, and that a large quantity of goods were shipped upon freight in her at that time. III. That on the .... day of. . . . . . . ., 187., at the defendant, in consideration of ..... dollars to it paid, executed to the plaintiff a policy of insurance upon the said freight, a copy of which is hereto annexed, marked "Exhibit A," and made part of this complaint, and thereby insured for him dollars upon certain goods then laden upon the ship, for a voyage from to ... against the perils of the sea, and other perils in the policy mentioned. .... IV. That the said vessel, while proceeding upon the voyage mentioned in the said policy [or during said voyage, and while lying in the port of .... ], was [or state said goods, the freight whereof was insured, were], on the .... day of 187., totally lost by [the perils of the sea]. V. That the plaintiff has not received any freight from the said vessel, nor did she earn any on the said voyage, by reason of her loss as aforesaid. VI. That the plaintiff's loss thereby was lars. VII. That on the day of .... dol 187., he fur nished the defendant with proof of his loss and interest, and otherwise performed all the conditions of the said policy on his part. VIII. That the defendant has not paid the said loss. [Demand of Judgment.] [Annex Copy of Policy, marked "Exhibit A."] 46. Averment of Loss by Collision.-That on the....day of 187., while the said [ship], with the said goods on board, was proceeding on her said voyage, and before her arrival at her said port of destination in the said policy mentioned, another vessel, with great force and violence, was carried against and run foul of the said [ship], and the said [ship] thereby was, with the said goods, sunk and [totally] lost. .... 47. Averment of Waiver of a Condition. That afterwards, and on the day of 187., at the defendants, by their agents duly authorized thereto, waived the condition of the said policy by which [designating it], and released and discharged the plaintiffs from the performance thereof [or, and consented that the plaintiffs should, etc., according to the facts]. [TITLE.] No. 129. xii. For a Partial Loss and Contribution. .., 187., at ...... The plaintiff complains, and alleges: I. [Allege incorporation as in Form 118.] II. That on the . . . . . . day of ..... in consideration of the premium of ... dollars, then and there paid by the plaintiff to the defendant, the defendants, by their agents duly authorized thereto, made their policy of insurance in writing, of which a copy is annexed as a part of this complaint, and marked "Exhibit A," and thereby insured for him dollars upon certain goods then for a voyage and there laden upon the ship from ........ to .... ...9 against the perils of the sea [or mention the perils which occasioned the loss]. III. That said ship did, on the ...... day of sail on the said voyage, and while proceeding thereon was, by the perils of the seas, dismasted and otherwise damaged in her hull, rigging and appurtenances; insomuch that it was necessary for the preservation of said ship and her cargo, to throw over a part of said cargo [or a part of her rigging and furniture], and the same was accordingly thrown over for that purpose. IV. That in consequence thereof, the plaintiff was obliged to expend ...... dollars in repairing said ship, at and is also liable to pay ...... dollars as a contribution to and for the loss occcasioned by said throwing over of part of said cargo. day of... he gave to the defendant due notice and proof of the loss as aforesaid, and otherwise duly fulfilled all the conditions of said policy of insurance on his part. VI. That no part of the same has been paid by the defendant. [Demand of Judgment.] [Annex Copy of Policy, marked "Exhibit A."] 48. Allegation for a Particular Average Loss.-That on the .... day of ........, while on the high seas, the sea-water broke into the said ship, and damaged the said [flour] to the amount of ........ dollars. 49. Contribution.-The owner of a vessel is not entitled to contribution on general average, for damage sustained, or expense incurred, by reason of the perils of the seas, if the vessel was unseaworthy when she left port, although from a latent defect: Wilson v. Cross, 33 Cal. 60. 50. Jettison.-A vessel fell in with a ship in a sinking condition. To save the lives of the ship's passengers and crew, the master of the vessel consented to receive them; but as it was necessary to throw overboard part of his cargo to make room for them, he began to do so before any of them came on board, and continued it while they were coming on board, until room enough was made. The owner of the vessel sued the insurers for a contribution to general average, for the above jettison: Held, that he could not recover: Dabney v. New England Mutual Ins. Co., 14 Allen (Mass.) 300. 51. Particular Average.-Furniture was insured "free of particular average (which was taken to mean "against total loss only "). During the voyage, the vessel was wrecked and condemned, and said goods were transhipped, parts of sets into one vessel, and parts into another. One of said vessels was lost, with its cargo, and the other arrived safely: Held, that the insurers were liable for the goods lost: Pierce v. Columbia Ins. Co., 14 Allen (Mass.) 320. The plaintiff complains, and alleges: I. That on the .... day of........, 187., in the [District Court] of the ......... Judicial District, in and for the County of in this State, a judgment was duly given and made by said court in favor of this plaintiff, and against the defendant herein, in an action in said court last above-named pending, wherein this plaintiff was plaintiff, and said defendant was defendant, for the sum of ..... dollars [if the judgment provided for a special rate of interest, add], which said judgment bears interest from the date thereof at per centum per annum. ........ II. That said judgment remains wholly unpaid. [Demand of Judgment.] 1. Action Lies on a Judgment. Where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained. It is in this way that judgments of foreign courts are enforced, and the rule applies equally whether they be courts of record or not: Williams v. Jones, 13 M. & W. 633. The same rule prevails in the United States, where such action has been maintained in one State on a judgment rendered by a justice of the peace in another: Cole v. Dreshell, 1 Blackf. 16. In Virginia, debt was maintained upon a judgment obtained in a court, the office of which had been consumed by fire, and the record of the judgment wholly destroyed: Newcomb v. Drummond, 4 Leigh. 57. An action lies upon an unpaid judgment, although the execution has not been returned: Linton v. Hurley, 114 Mass. 76. It is not necessary to allege an unsuccessful effort to collect the judgment: King v. Blood, 41 Cal. 314. 2. Action Lies on a Decree.-It was formerly doubted whether an action could be maintained upon a decree for the reason that the plaintiff had no legal right to the money, but only that upon certain views peculiar to a court of equity the payment ought to be made, and that no promise could be implied from a decree: See Carpenter v. Thornton, 2 Barn. & Ald. 52. It is now established, both in England and the United States, that an action will lie on such decree: Henderson v. Henderson, 51 Eng. Com. Law. R. 288; Pennington v. Gibson, 16 How. (U. S.) 76. 3. Against Counties.-A judgment against a county, under the act authorizing counties to sue and be sued, has the effect of converting a demand into an audited claim: Sharp v. Contra Costa Co., 34 Cal. 284. 4. Date of Entry.--In an action on a judgment, the postea in the record stated that the judge presiding at nisi prius, sent up the record of proceedings had before him on the nineteenth day of November, 1855, and it appeared that judgment was signed September 26, 1856: Held, that it was properly averred in the complaint, that the judgment was recovered on the latter day; and if this had been an error, it was amendable at the trial, and would be disregarded on appeal: Lazier v. Westcott, 26 N. Y. 146. 5. Enforcement of Judgment.--A judgment unreversed and not suspended, may be enforced: Raun v. Reynolds, 18 Cal. 276. But it need not be averred in the complaint that it was unreversed: 1 Chitt. Pl. 321. 6. Federal Courts.--A declaration was sufficient which averred that "at a general term of the Supreme Court in equity, for the State of New York," etc.; being thus averred to be a court of general jurisdiction, no averment was necessary that the subject-matter in question was within its jurisdiction, and the courts of the United States, will take notice of the judicial decisions in the several States, in the same manner as the courts of those States: Pennington v. Gibson, 16 How. (U.S.) 65. |